0120093106
07-15-2011
Paul W. Hackney, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Paul W. Hackney,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120093106
Agency No. HS-08-TSA-006740
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated June 8, 2009, dismissing a formal complaint of
unlawful employment discrimination in violation of 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 was employed as a Transportation
Security Officer (TSO) at the Chattanooga Metropolitan Airport in
Chattanooga, Tennessee.
On May 23, 2008, Complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful.
On August 29, 2007, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency subjected him to
discrimination on the basis of disability when:
1. on December 3, 2007, Agency management assigned him work duties
outside his doctor’s work restrictions; and
2. on April 24, 2008, he learned he was not able to bid on a shift,
due to his limited duty status.
The record reflects that in August 2005, Complainant tripped over one of
the mats at the Chattanooga Metropolitan Airport which caused serious
damage to his spine. The record further reflects that Complainant had
a permanent spinal back injury which imposed permanent restrictions
including the ability to work one and one-half hours while sitting,
walking or standing with no reaching above his shoulders, and “no
twisting, bending/stooping 1.5 hours, as well as other significant
limitations. I was to get a 15-20 minute break every two hours.”
In its June 8, 2009 final decision, the Agency dismissed claim 1 on
the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. §
1614.107(a)(2). The Agency found that Complainant did not initiate EEO
Counselor contact until May 23, 2008, which it determined was beyond the
45-day limitation period. The Agency further stated when asked about
his untimely EEO contact, Complainant stated that he emailed the Office
of Civil Rights and Liberties (ORCL) his complaint in December 2007.
The Agency stated, however, the ORCL contact log shows no such contact
from Complainant. The Agency further stated that Complainant had a
reasonable suspicion of discrimination well before his May 23, 2008
EEO contact.
The Agency further dismissed claim 2 for failure to state a claim,
pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency found that
Complainant had not shown he was aggrieved by the Agency’s actions
because he failed to show any harm from such actions. The Agency noted
that because Complainant cannot perform the essential functions of the
TSO position, he cannot bid on TSO shifts while on limited duty status.
Specifically, the Agency noted that his restrictions prevented him from
qualifying for “the X-ray machine or anything else that regular TSO
jobs require and that I can’t do…”
ANALYSIS AND FINDINGS
We first address whether the Agency properly framed Complainant’s
claims. The record reflects that the Agency analyzed Complainant’s
allegations as discrete acts. However, based on the factual allegations
set forth in the instant formal complaint and the evidence in the record,
the Commission finds that the instant formal complaint should have been
viewed in the context of stating a variety of alleged incidents of
harassment and the creation of a hostile work environment. We note,
for example, that the record contains a statement wherein Complainant
indicated that he has “been harassed and subjected to constant stress
because of something that was not my fault.”
Untimely EEO Counselor contact (claim 1)
As noted above, the Agency dismissed claim 1 on the grounds of untimely
EEO Counselor contact. In doing so, we find that the Agency improperly
analyzed the claims by distilling it into a singular allegation. However,
a fair reading of the allegations in the instant complaint, as well
as the related EEO counseling report and pre-complaint, reveals that
Complainant is, in essence, raising a complaint on ongoing harassment.
Moreover, it is significant to note that the variety of matters raised
by Complainant address the issue of an ongoing reasonable accommodation
denial. 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 “Threshold
Issues,’ EEOC Compliance Manual, at 2-73 (Revised July 21, 2005).
The Supreme Court has held that a Complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S. Ct. 2061 (June 10, 2002). This principle 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. As this matter was timely
raised with an EEO Counselor, the other incidents of alleged harassment
identified by Complainant will be construed as timely raised with an
EEO Counselor as well.
Complainant claims, in essence that he was subjected to discrimination
when the Agency assigned him work duties outside his doctor’s work
restrictions. In his formal complaint, Complainant stated that he was
initially assigned all duties at the passenger screening checkpoint,
however, his immediate supervisor “saw the error in this and I was
limited to performing the TSA Passenger Screening Checkpoint Duties of
Exit Lane Monitor and Travel Document Checker (TDC). I was routinely
assigned to perform these duties simultaneously, which not only violated
my restrictions and limitations, but also one excluded performing the
other properly.” We find that because Complainant is alleging an
ongoing violation of his reasonable accommodation requests, we find that
his May 23, 2008 EEO Counselor contact was not untimely with regard to
the claims alleging denial of reasonable accommodation. See Peacock
v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008).
Failure to state a claim (claim 2)
The Agency improperly dismissed claim 2 for failure to state a claim.
Complainant alleged that he was denied the right to bid for his preferred
shift “because of my ‘LIMITED DUTIES.’ I highlighted this to bring
to your attention the difference between ‘Limited Duty,’ i.e. hurt in
the line of duty and ‘Light Duty,’ i.e. hurt not in the line of duty.
The documents management keeps presenting to me expressly cover light duty
[emphasis in its original].” These matters state an actionable claim
of harassment, especially when considered in conjunction with claim 1,
discussed above. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). Moreover, it appears that the Agency
analysis on this claim in part, goes to the merits of Complainant's
complaint, and is irrelevant to the procedural issue of whether he
has stated a justiciable claim. See Ferrazzoli v. USPS, EEOC Request
No. 05910642 (August 15, 1991).
Accordingly, we REVERSE the Agency’s final decision dismissing
Complainant’s 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 (E0610)
The Agency is ordered to process the remanded claims (harassment/hostile
work environment) 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 (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 (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
July 15, 2011
__________________
Date
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0120093106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093106
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