0120152197
03-30-2016
Manuel R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Manuel R.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152197
Agency No. 200P-0663-2013104685
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 8, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Food Service Worker at the Agency's Puget Sound Health Care Center in Seattle, Washington.
On September 24, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On October 31, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race and disability when:
1. on August 15, 2011, the Director of Nutrition and Food Service denied his request for accommodation;
2. on December 16, 2011, his request for accommodation, a two-hour arrival change, was denied;
3. on June 3, 2013, he was reassigned to the Puget Sound HCS from the MOVE program at American Lake; and
4. on July 9, 2013, he submitted his request for disability retirement due to "...the brutal hostile continuous discriminatory civil unethical actions," undesirable, reassignment and because no more accommodations would be offered.
5. On August 23, 2013, he was constructively discharged as a result of the intolerable working conditions created by the harassment.2
On January 13, 2014, the Agency issued a final decision dismissing the instant formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on September 24, 2013. The Agency determined further that the alleged discriminatory events occurred from August 15, 2011 to July 9, 2013 (excluding the constructive discharge claim) but that Complainant's initial EEO contact was beyond the 45-day limitation period.
On appeal, the Commission found that Complainant initiated EEO contact within 45 days of an August 23, 2013 constructive discharge. The Commission found further that because the constructive discharge claim was timely, the claims supporting alleged hostile work environment which culminated in constructive discharge was also deemed timely. The Commission therefore reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Taylor v. Department of Veterans Affairs, EEOC Appeal No. 0120141607 (July 18, 2014).
Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
In its May 8, 2015 final decision, the Agency again dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency noted that when questioned during the investigation, Complainant denied alleging a constructive discharge and later specifically withdrew the subject allegation. The Agency determined that there was no evidence in the record indicating that Complainant submitted documentation for disability retirement. The Agency determined that the withdrawal of Complainant's constructive discharge claim had rendered the harassment claims which preceded the matter addressed in claim 5 (constructive discharge) as untimely raised.
The instant appeal followed.
ANALYSIS AND FINDINGS
Constructive discharge claim (claim 5)
It is undisputed that Complainant contacted an EEO Counselor on September 24, 2013, with the intent to file an EEO complaint. The Agency claimed that claim 5 was withdrawn, and that the remaining alleged discriminatory events, occurring from August 15, 2011 to July 9, 2013, were beyond the 45-day limitation period. Specifically, in regard to claim 5, the Agency noted that in the Report of Investigation, the investigator stated that Complainant claimed "he did not resign or quit his job, but was forced to submit medical disability retirement documents due to the inability of the agency to accommodate him anymore." We acknowledge that Complainant's statement as identified in the Report of Investigation could lend credence that he neither resigned nor quit his position. However, the statement must be read in its totality. Complainant goes on to indicate that he was forced to submit medical disability retirement documents due to Agency inability to provide him with a reasonable accommodation. Despite any possible confusion that may have been engendered by Complainant's description of the matter raised in claim 5, we are persuaded that a "constructive discharge" claim remains viable In light of the fact that Complainant acknowledged to the investigator that he was forced to submit medical disability retirement documents based on the Agency's failure to accommodate him is indeed a constructive discharge claim. Therefore, we find that claim 5 is timely.
Remaining claims (claims 1 - 4)
With respect to claims 1 - 4, we note in his formal complaint, Complainant alleged that he began his request for a reasonable accommodation in December 2011. Specifically, Complainant stated "in December of 2011, I requested reasonable accommodations was declined (the request was a 2 hr change which forced me to request medical retirement)." EEOC's Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that "because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it." Further, the Commission has specifically held that the denial of reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. See Harmon v. Office of Personnel Management, EEOC Request No. 05930365 (Nov. 4, 1999); Peacock v. U.S. Postal Service, EEOC Appeal No. 0120032372 (July 31, 2003). Complainant asserted that since December 2011, he was formally denied the request. This principal applies to this case as it is clear that Complainant initiated contact with an EEO Counselor within the regulatory time frame, at a minimum, in regard to the above referenced reasonable accommodation issue. Moreover, we note that these matters purportedly culminated in a constructive discharge, as noted in the Commission's decision of July 18, 2014, referenced above. The denial of reasonable accommodation matters, when construed in concert with the constructive discharge claim, are deemed timely raised with an EEO Counselor.
Therefore, we find that the Agency improperly dismissed claims 1 - 4 on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment/hostile work environment and denial of reasonable accommodation) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 While the Agency did not characterize the formal complaint as including the constructive discharge claim, a fair reading of the EEO counseling report in conjunction with the complaint indicates that it was part of Complainant's complaint.
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