0120121373
04-12-2012
Marcia A. Lurensky, Complainant, v. Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission, Agency.
Marcia A. Lurensky,
Complainant,
v.
Jon Wellinghoff,
Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal No. 0120121373
Agency No. EEO-2011-MAL-005
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 22, 2011, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Trial Attorney at the Agency's Office of Administrative Litigation (OAL) in Washington, DC. On July 15, 2011, she filed a formal complaint alleging that the Agency subjected her to discrimination and harassment based on disability (psoriasis, arthritis, including degenerative and rheumatoid-like, degenerative disc disease, including stenosis, diminished range of motion of the cervical spine, embolic cerebral vascular accident (stoke), cardiomyopathy, tachycardia, congestive heart failure, orthopedic impairments including Baker's cyst, torn meniscus, fractures, and feet, sensitivity to certain non-incandescent artificial lighting which cause seizure like episodes, allergies, migraine headaches, compromised immune system, infection, irritable bowel syndrome, bleeding issues, hernia, Sjogren's Syndrome), age (62), and reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when:
1. on April 28, 2011, the OAL Office Director advised her that she would not be excused from appearing in the Agency's Headquarters' hearing rooms when attendance was required by her duties, and in response to her reasonable accommodation request to continue to be excused, on May 26, 2011, the Agency's EEO Manager/Advisor denied the request; 1 and
2. her request to telework for the day of June 3, 2011, was denied.
Complainant wrote that after her medical issues arose she was not given assignments which required her to appear in the hearing rooms, and the Agency was revoking this accommodation. She contended that there was strong florescent lighting in the hearing rooms, which could cause her to have seizure like episodes, and strong non-incandescent light caused her to have disorientation, change in skin color, to sweat, and have headaches.
In May 2010, Complainant moved with OAL from the Headquarters building to a new location about two blocks away. Complainant contended that in addition to the lighting problem, she would need a transport accommodation to get to the hearing rooms. She also contended that her request to telecommute on June 3, 2011, was a reasonable accommodation request.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not harmed, that she did not make a proper request for reasonable accommodation regarding the lighting in the hearing rooms, did not request to telecommute as a reasonable accommodation, and did not need such an accommodation.
On appeal, Complainant argues that the Agency omitted issues in her complaint. She contends that she also alleged that on April 28, 2011, the OAL Office Director denied her request to telecommute as a reasonable accommodation for her disabilities; and the Agency denied her Health Insurance Portability and Accountability Act (HIPPA) and Privacy rights.2 Complainant argues that she requested accommodations on the hearing rooms and telecommuting, that she needed them, and that her complaint states a claim.
ANALYSIS AND FINDINGS
As an initial matter, we find that with the detail we added to issue 1, the Agency properly defined Complainant's complaint. Upon a review of the complaint, we were unable to identify an allegation that the OAL Office Director on April 28, 2011, denied Complainant's request to telecommute as a reasonable accommodation. Also, Complainant's alleged denial of her HIPPA and Privacy rights was too vague to capture as an actionable claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
We find that issue 1 states a claim because Complainant is alleging the Agency is denying her reasonable accommodation for her disabilities, this subjected her to a hostile work environment, and it would reasonably likely deter EEO activity. The Agency's finding that Complainant did not make a proper request for reasonable accommodation goes to the merits of the complaint, not whether the complaint states a claim.3
On July 14, 2008, Complainant filed a civil action 1:08-cv-01199 in the United States District Court for the District of Columbia.4 She alleged therein that the Agency violated Title VII and the Rehabilitation Act when in 2003 it revoked her reasonable accommodation of working at home when needed.
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988). Issue 2 is covered by the civil action, and is thus dismissed.
CONCLUSION
The Agency's decision to dismiss issue 2 is AFFIRMED. The Agency's decision to dismiss issue 1, as defined above, is REVERSED. On remand, the Agency shall process issue 1, as defined above, in accordance with the order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 12, 2012
__________________
Date
1 The Agency's definition of this claim contained less detail, i.e., no dates, and no mention of the denial by the EEO Manager/Advisor. We added more detail to better capture the claim.
2 In its dismissal letter the Agency referenced Complainant's contention that her HIPPA and Privacy rights were violated, but noted she failed to identify any specific action. She continues not to identify any specific action on appeal.
3 We note that when Complainant was in EEO counseling, she was scheduled to appear in the hearing room on June 1, 2011. There was a big power outage that day, so she did not have to appear. According to the counselor's report, another conference was scheduled in the hearing room on September 14, 2011. Complainant does not state on appeal whether she was subsequently required to report to the hearing room.
4 The civil action complaint was filed under seal. A copy of the civil action complaint is in the record of Lurensky v. Federal Energy Regulatory Commission, EEOC Appeal No. 0120092524. The District Court's electronic docket shows that as of April 10, 2012, the civil action was pending.
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0120121373
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121373