Reid J.,1 Complainant,v.Jerome H. Powell, Chair, Federal Reserve System, Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

2019000273 (E.E.O.C. Dec. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Reid J.,1
Complainant,

v.

Jerome H. Powell,
Chair,
Federal Reserve System,
Agency.

Appeal No. 2019000273

Hearing No. 570-2017-00699X

Agency No. FRB-EEO-16-11-006

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 14, 2018, dismissing his 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

At the time of events giving rise to this complaint, Complainant worked as a Senior Economist,
FR-29, at the Agency’s facility in Washington, D.C.

On November 17, 2016, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination on the basis of disability (Obsessive Compulsive Disorder)
when: (1) management delayed issuing a decision on Complainant’s reasonable accommodation
request, submitted July 16, 2013; and (2) on August 22, 2016, management denied
Complainant’s reasonable accommodation request. The record indicates that Complainant sought
subsidized parking by the Agency as a reasonable accommodation.

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.
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The matter was investigated and Complainant requested a hearing. Thereafter, an EEOC
Administrative Judge (AJ) granted the Agency’s motion to dismiss the complaint for failure to
state a claim. The AJ noted Complainant’s argument that riding public transportation aggravated
the symptoms of his disability, therefore making it more difficult to think and concentrate upon
arriving at work, and that a subsidized parking space would assist him in performing the essential
functions of his job. However, the AJ found there was public parking available in the vicinity of
his work place and that it was not the receipt of a paid parking space that allowed Complainant to
perform the essential functions of his position. Rather, he would be equally capable of
performing his job if he paid for his own parking out-of-pocket. Thus, the AJ found that
Complainant’s request for reasonable accommodation was not disability-related, and the Agency
was under no obligation to provide it. The AJ noted that the Agency was not required to explore
alternative accommodations, and because his request was not disability-related, the Agency’s
failure to act in a timely manner did not constitute an actionable injury.

The Agency adopted to AJ’s decision dismissing the complaint. The instant appeal followed
wherein Complainant disputes the AJ’s findings.

ANALYSIS AND FINDINGS

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). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

Here, we concur with the AJ that Complainant failed to allege sufficient facts, which if proven
true, would establish that he suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. While Complainant alleges that management failed
to accommodate him, we agree with the AJ that the accommodation he was seeking was not
related to his disability as Complainant has only contended that he needs to drive to work rather
than using public transportation to avoid the symptoms of his disability. It is undisputed that
there is available public parking facilities near his place of employment that he could use. It is
further noted that Complainant is not alleging that he requires parking in a space designated for
individuals with disabilities. Rather, he is asking the Agency to pay for his parking in one of the
available parking facilities as an accommodation to his disability. The complaint, as written,
without more, simply does not state a viable claim of disability discrimination. There is no
explanation from Complainant as to how the Agency paying for his parking relates to his
disability or would allow him to perform the essential functions of his position.
Accordingly, the Agency's final order, which adopted the dismissal by the AJ, is AFFIRMED.

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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 (S0610)
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. 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.

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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

December 21, 2018
Date