EEOC Appeal No. 0120171474
08-23-2017
Neville B. v. Dep't of Transp.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Neville B,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.
Appeal No. 0120171474
Agency No. 2017-27189-FHWA-02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 28, 2017, dismissing his 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
On October 25, 2016, Complainant, a former Reality Specialist, GS-1170-2, at the Agency's Planning/Environment/Office of Real Estate Services in Washington, D.C. initiated EEO Counselor contact.2 Informal efforts to resolve his concerns were unsuccessful.
On December 30, 2016, Complainant filed the instant formal complaint.
In the instant final decision, the Agency determined that Complainant alleged that the Agency subjected him to discrimination on the bases of race, color, and disability when:
a. from September 2014 to November 2014, his request for reasonable accommodation, in the form of a specific number of days of telework, was not provided;
b. on July 3, 2015, his leave request was not approved;
c. on or about April 19, 2016, he was not selected for the position of Realty Specialist., GS-1170-13/14, advertised under Vacancy Announcement Number FHWA.HEP-2016-0015 & 0014; and
d. on July 14, 2016, he received a performance appraisal rating of "Achieved Results" for the period of June 1, 2015 to May 31, 2016.
In his formal complaint, however, Complainant also provided a chronological narrative of alleged discriminatory events from 2014 through his departure from Agency employment on October 30, 2016. Complainant noted, for example, that he sought a reasonable accommodation to telework but was subject to repeated coercive questions about his medical history, causing him
to end his "reasonable accommodation for telework early." Complainant noted that while an Agency official had a policy of not approving leave and telework on the same day, a new employee (identified herein as LS), "regularly mixes telework and leave on the same day." Complainant submits an October 20, 2016 email from LS, reflecting her intention to telework and take leave on that same day.
In its February 28, 2017 final decision, the Agency dismissed the 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 October 25, 2016, which it found to be beyond the 45-day limitation period regarding the four claims identified in the final decision.
The instant appeal followed. Complainant, on appeal, stated that his October 25, 2016 EEO contact was timely. For instance, Complainant stated that in paragraph 6 of Section C "The Chronology of EEO Counseling" of the EEO Counselor's Report, the alleged discriminatory act was "on-going since September 2014. With the most recent acts taking place August 2 - Oct. 20. [emphasis in its original]"
ANALYSIS AND FINDINGS
The Agency improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on October 25, 2016. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's October 25, 2016 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matters which the Agency identified in claims a - d is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.
Moreover, we note that the instant complaint can be reasonably construed as addressing a denial of reasonable accommodation, or as an Agency action which caused Complainant to cease a reasonable accommodation earlier than contemplated, as discussed above. EEOC Compliance Manuel, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer has an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g. Peacock v. USPS, EEOC, Appeal No. 0120082372 (July 31, 2008).
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/hostile work environment and denial of reasonable accommodation) s 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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (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 Complainant's 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
August 23, 2017
__________________
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 The record reflects that Complainant left Agency employment effective October 30, 2016.
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