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
7
0120090303