Maryann Koller, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJan 30, 2009
0120090303 (E.E.O.C. Jan. 30, 2009)

0120090303

01-30-2009

Maryann Koller, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Maryann Koller,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 0120090303

Agency No. DLAP-08-0832

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision, dated September 17, 2008, pertaining to 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.

The appeal is accepted in accordance with 29 C.F.R. 1614.405.

On May 23, 2008, complainant contacted the EEO office regarding claims

of harassment. Informal efforts to resolve complainant's concerns

were unsuccessful. Subsequently, complainant filed a formal complaint

based on disability, age and sex. The agency, in its decision, framed

the claims as follows:

Management harassed complainant and created a hostile work environment

when:

A. On or around April 2007, complainant requested a reasonable

accommodation to be placed on flexiplace, complainant has continuously

supplied medical documentation to support her request. Management has

failed to respond to her request and;

B. On or around May 18, 2008, complainant stated she submitted additional

medical documentation for her request for an accommodation of flexiplace.

Her request for an accommodation has not be granted nor denied.

In its decision, the agency dismissed claim (A) on several grounds.

First, the agency concluded that the April 2007 matter was identical to

the claim previously raised in Case No. DLAP-07-0645.1 Additionally, the

claim was dismissed for untimely counselor contact. Claim (A) was also

dismissed because the allegation was raised in the negotiated grievance

process, noting that the step one grievance was filed on October 23, 2007.

Regarding claim (B), the agency dismissed the matter for failure to state

a claim. According to the agency, the additional medical documentation,

which complainant referred to as a request for an accommodation, was

the document submitted to support her absence. The agency found that it

was not a request for flexiplace, and therefore did not state a claim.

On appeal, complainant disputes that agency's assertion that she cannot

re-file a complaint regarding claim (A), arguing that she withdrew

during the pre-complaint stage. Complainant only withdrew at that point

because she believed the EEO office was going to resolve the matter

without filing a complaint. As to claim (B), complainant argues that the

complaint concerns a job related injury and the agency's failure to grant

her request for an accommodation, "not on Exhibits A & B cited in the

Notice of Decision." Complainant asserts that "the medical documentation

addressed the impact that the [failure to grant] the accommodation was

having on [complainant's] medical condition . . . ." By denying the

accommodation, contends complainant, "under the guise of needing more

medical documentation", the agency created a hostile work environment.

In response, the agency requests that the Commission affirm its dismissal

of the complaint.

29 C.F.R. 1614.107(a)(1)

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). EEOC Regulation

29 C.F.R. � 1614.107(a)(1) also states that the agency shall dismiss a

complaint that states the same claim that is pending before or has been

decided by the agency or Commission.

As an initial matter, the Commission finds that the agency improperly

framed the complaint. A fair reading of the formal complaint reflects

that complainant believes she was subjected to harassment when she was

repeatedly required to provide medical documentation for her request for

a reasonable accommodation. According to complainant, her request would

neither be approved nor denied, but instead the agency's response was that

more documentation was needed. Additionally, complainant asserts she

was subjected to disparate treatment, in that other employees have been

granted accommodations. Although the agency's decision makes reference

to a "hostile work environment", its dismissal treated the supporting

evidence in a piecemeal manner.

Consequently, we find that the agency's dismissal of claim (B) for failure

to state a claim was improper. As to the dismissal of claim (A) on the

grounds that it was previously raised in an informal complaint, we also

determine that the agency erred. As noted above, the regulations provide

for the dismissal of a claim that was previously decided by the agency

or Commission. Here, the agency indicates only that the matter was raised

informally, and we do not find that complainant abandoned the issue.

29 C.F.R. � 1614.107(a)(2)

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Since complainant's claim relates to the denial of her request for

a reasonable accommodation, we find that it is a recurring violation.

The EEOC 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." The Commission has specifically held that the denial of a

reasonable accommodation constitutes a recurring violation that repeats

each time the accommodation is needed. See Harmon v. Office of Personnel

Management, EEOC Request No. 05980365 (November 4, 1999). Therefore,

viewed as a recurring violation the Commission finds that the agency's

dismissal for untimely counselor contact was improper.

29 C.F.R. 1614.107(a)(4)

EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is

employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a

collective bargaining agreement that permits claims of discrimination to

be raised in a negotiated grievance procedure, a person wishing to file a

complaint or grievance on a matter of alleged employment discrimination

must elect to raise the matter under either part 1614 or the negotiated

grievance procedure, but not both. An aggrieved employee who files

a grievance with an agency whose negotiated agreement permits the

acceptance of grievances which allege discrimination may not thereafter

file a complaint on the same matter under this part 1614 irrespective

of whether the agency has informed the individual of the need to elect

or whether the grievance has raised an issue of discrimination.

The instant record contains a copy of a grievance decision, dated December

18, 2007, regarding complainant's request for a reasonable accommodation.

The decision describes events that occurred in June through October

2007, and specifically notes that "as of 'COB' November 2, 2007, no

reply [regarding complainant's request] has been received to date."

Therefore, we find that complainant's claims of harassment and the denial

of an accommodation for that time period, October 2007 through October

2007, were raised in the negotiated grievance process. As a result,

evidence regarding these events shall only be considered as background

information in the instant EEO complaint. The remaining time period,

from October 2007until May 2008, is encompassed within the instant case

which shall be returned for processing.

CONCLUSION

Accordingly, the agency's decision to dismiss complainant's complaint was

improper, and is hereby REVERSED. The complaint, as redefined herein,

is REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER (E0408)

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 (K0408)

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 19848,

Washington, D.C. 20036. 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 (M0408)

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), 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 19848,

Washington, D.C. 20036. 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0408)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

January 30, 2009

__________________

Date

1 According to the agency, complainant voluntarily withdrew her informal

complaint for Case No. DLAP-07-0645.

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2

0120090303

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090303