0120162302
11-10-2016
Ronny S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ronny S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120162302
Agency No. 200P03432015105514
DECISION
Complainant timely appealed to this Commission from the Agency's June 10, 2016, dismissal 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 Management Analyst (GS-12) at the Agency's Oakland Regional Office in Oakland, California.
On March 9, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment on the basis of disability (disabled veteran, undisclosed physical and mental disabilities) when:
1. On June 11, 2015, the Assistant Director, who was Complainant's supervisor ("S1"), contacted the physician Complainant visited to inquire about his medical excuse for missing work that day, and she obtained his personal medical information when she did not have a need to know, violating Complainant's privacy under the Rehabilitation Act and the a Health Insurance Portability and Accountability Act (HIPAA).
2. On June 12, 2015, S1 placed him on AWOL (without pay) for his June 11, 2015 absence;
3. On or about July 12, 2015, he discovered that his coworkers knew of his medical condition which Complainant's physician had reported in response to S1's inquiry;
4. On August 7, 2015, S1 issued him an admonishment regarding his absences;
5. On October 1, 2015, S1 issued him a proposed suspension for unauthorized absences; and
6. On February 8, 2016, S1 issued him a suspension.
Complainant, a veteran with several service connected disabilities that impacted him both mentally and physically, regularly required medical care and experienced "bouts of incapacitation which rendered him unable to report to duty." When he began working in the Director's Office, about a year prior to raising instant complaint, he notified his supervisor, the Assistant Director ("S1"), about the physical and mental effects of his disability. Specifically, Complainant's disability causes him to be late and absent more frequently than his peers.
On February 12, 2015, Complainant was issued a counseling letter regarding his use of sick leave, and listing recent late arrivals and absences. Complainant alleges that there is an office policy to maintain a minimum of 100 hours of sick and annual leave at all times, which is not reasonable given his disability-related needs. On May 1, 2015 S1 issued Complainant a Memorandum entitled "Sick Leave Cert.," which provided that "effective immediately" she would not grant Complainant "any amount of sick leave or any other type of leave in lieu of sick leave" without "certification." Going forward, Complainant would be required, within fifteen days of an absence, to provide S1 with a signed physician's note to include the date of visit, statement that Complainant was unable to work or incapacitated due to illness, and the dates of the incapacitation or illness. Otherwise, Complainant would be placed on AWOL. In addition, the May 1, 2015 Memorandum cited seven instances where Complainant was between fifteen to forty five minutes late to work since the February 12, 2015. Both the May 1, 2015 Memorandum and the February 12, 2015 Letter of Counseling were added to Complainant's record.
On or around June 10, 2015, Complainant had a scheduled doctor appointment at another Agency medical center. The next day, Complainant called out sick because he was experiencing residual discomfort from a procedure performed during the visit. S1 emailed the physician Complainant visited to determine if the procedure warranted sick leave. Based on the physician's response, S1 determined it did not, and changed Complainant eight (8) hours of unpaid leave (AWOL) even though he had annual and sick leave hours to cover the absence. On or around July 12, 2015, one of his coworkers asked him about his stitches, confidential medical information that could only have been provided by S1.
On June 21, 2015, S1 emailed Complainant, reminding him that he had 40.5 hours of annual leave remaining, and "as discussed to help you maintain a healthy end-of-year annual leave balance (around 100 hours) you will not be able to take any other time off for the rest of this year." S1 also reminded Complainant that his current sick leave balance was 7.5 hours, stating "please continue to build this up as well." Complainant took additional time off for medical reasons, which led to the August 7, 2015 Letter of Admonishment which cited 13 lates and 2 absences when Complainant failed to provide certification, per that May 1, 2015 Memorandum. Complainant was AWOL six more days between August 14, 2016 and October 1, 2016, when he was issued a Proposed Suspension. In his response to the Proposed Suspension, Complainant stated: "I believed it to be understood that I had several disabilities which... but may require me to continually to have little or no leave balance as I do have periods of time when my disabilities flare up and require me to either seek medical attention or remain at home to properly care for myself." The Agency issued the suspension in February 2016.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an
EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or compliant is "like or related" to the original complaint if the later claim or compliant adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original compliant during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014); referencing Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990)
The Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on the allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Serv., EEOC Request No. 05980289 (Jul. 16, 1999).
The record indicates that Complainant made EEO Contact on 3 separate occasions to raise the instant claims of discrimination. First, in Fall 2015, Complainant sought EEO Counseling on Claims 4 and 5 (Admonishment and Proposed Suspension), and referenced the May 1, 2015 Sick Leave Certification, and February 12, 2015 Memorandum in his precomplaint. Second, after taking FMLA leave, on March 9, 2016, Complainant raised Claims 2, 3 and 6 by using the Formal Complaint form that the Agency provided for Claims 4 and 5. Complainant appears to acknowledge this, stating in reference to Claims 4 and 5: "it should be noted that I am re-filing my Formal EEO Complaint (originally filed in October 2015) and requesting that it be opened since it was closed when I was on FMLA." Third, on March 29, 2016, Complainant sent an email entitled "Amendment to Complaint," to the Agency's EEO office describing Claim 1. Complainant emphasizes that the "main" reason he filed his EEO complaint was because of an alleged breach of his medical privacy (Claims 1, 2, and 3).
The Agency determined, and we agree, that all of the claims are "like and related." However, we find that the Agency erred when it did not forward Claims 1, 2, 3, and 6 for processing as a separate complaint. By the time Complainant made the second and third EEO contacts to raise Claims 1, 2, 3, and 6, his initial complaint had effectively been abandoned, because Complainant failed to pursue a formal complaint. Not only had Claims 4 and 5 become time barred from being raised in another complaint, the complaint itself, having been abandoned, could not be amended to include Complainant's additional claims. Hence our analysis will address Claims 4 and 5 separately from Claims 1, 2, 3 and 6.
First EEO Contact: Claims 4 and 5
Under 29 C.F.R. �1614.106(b), a complainant must file his or her written complaint with the agency that allegedly discriminated against him or her within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint required by 29 C.F.R. �1614.105(d), (e), or (f). A complaint is deemed timely if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. �1614.604(b).
The record discloses that Complainant raised Claims 4 and 5 during the precomplaint process on September 22, 2015. Having been counseled on the matter, and after an unsuccessful attempt at mediation, Complainant received the notice of right to file a formal complaint on December 28, 2015. Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until March 9, 2016, which is 57 days after it was due. On appeal, Complainant does not dispute that he received the Notice and provides no explanation to this Commission for his untimely filing. In its decision, the Agency states that Complainant explained that he was on leave under the Family and Medical Leave Act ("FMLA"), which ended on March 7, 2016.
The Agency correctly determined that Complainant's FMLA leave status during the filing window was insufficient by itself to warrant an extension under 29 C.F.R. �1614.604(c). Assuming arguendo that Complainant's FMLA absence was due to his own mental or physical condition rather than that of a family member, we have long held that a complainant's failure to meet a filing deadline will be excused for mental or physical health reasons only if the complainant establishes that he or she was so physically or emotionally incapacitated that she was unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989) A claim of incapacitation must be supported by medical evidence of incapacity during the filing window. See Dos Santos v. Dep't of Veterans Affairs, EEOC Appeal No. 01992476 (Jan. 3, 2001); See also, e.g. Maddux v. United States Postal Serv., EEOC Request No. 05980302 (Aug. 5, 1999) (Psychiatrist's statement that Complainant's mental condition rendered her unable to comprehend her legal rights and responsibilities during the relevant time frame was found sufficient to justify extension of time limit.). In the instant case, nothing in record supports a finding that Complainant was so incapacitated throughout the applicable period as to prevent him from timely filing his complaint.
We find that Claim 4, which consists of the August 7, 2015 Admonishment, was properly dismissed for untimely filing of an EEO Complaint. As discussed above, Complainant has provided no justification for granting his March 9, 2016 request to "re-file" these allegations. With regard to Claim 5, we note that when a complaint is filed on a proposed action, here the October 1, 2015 Proposed Suspension, and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Thus, the proposed action would merge with the final action. In the instant case, Complainant timely raised the final action, his February 16, 2016 Suspension, in Claim 6, so his allegations in Claim 5 may be considered as part of Claim 6.
Second and Third EEO Contact: Claims 1, 2, 3 and 5/6
Harassment
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." EEOC Compliance Manual, 2 - 75 (revised July 21, 2005) referencing National Railroad Passenger Corp., at 117. Per our regulations, Complainant may include any claims that are like and related and have not already been raised before and EEO Counselor as part of his harassment allegation. 29 C.F.R. � 1614.107(a)(2); National Railroad Passenger Corp., supra. For purposes of stating a harassment claim, it is undisputed that Claims 1, 2, 3 and 5/6 are "like and related." Claims 1, 2, and 3 all allege discriminatory acts that occurred over 45 days before Complainant's second and third EEO Contacts in March 2016. However, Claim 6 concerns a personnel action with an effective date of February 16, 2016, which falls within the 45 day time window to raise a claim of discrimination. As they are "like and related" we find that Claims 1, 2, 3 and 5/6 state a timely harassment claim.
Failure to Provide Reasonable Accommodation
We note that it is clear Complainant was raising a claim of failure to reasonable accommodate under the Rehabilitation Act. See Garrett M. v. U.S. Postal Serv., EEOC Appeal No. 0120160081 (Jan.14, 2016) (Reversing the Agency's dismissal for untimely EEO counselor contact based on the Agency's failure to address the issue of reasonable accommodations). Upon review of the record, we determine that Complainant alleged that he was subjected to discrimination when the Agency failed to provide him with a reasonable accommodation. He first informed S1 of his disability-related needs about a year prior to the first allegation in the instant complaint. The precomplaint documents for Complainant's first EEO contact include failure to provide a reasonable accommodation as the alleged discrimination. Complainant expressly links his leave usage, the basis of the Proposed Suspension and Suspension, in his formal response to the Proposed Suspension (Claim 5, now part of Claim 6). Specifically, he stated: "I hope that this discrimination will cease and we can work towards a reasonable accommodation." He further stated that "under the Americans with Disabilities Act (ADA) I have the right to use any and all earned leave to care for my disabilities." Not only did the Agency go through with the Suspension (Claim 6), the Agency is also silent on the matter of reasonable accommodations in the Decision before us.
An Agency's duty to accommodate is ongoing, and failure to provide such accommodation constitutes a violation each time the employee needs it constitutes an injury or harm to a term, condition, or privilege of employment for which there is a remedy, thereby stating a claim. See Garrett, supra. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994); see also Gonzalez v. United States Postal Serv., EEOC Appeal No. 0120082632 (Nov. 27, 2009). (Complainant stated a claim of discrimination when the Agency sent her home and would not allow her to work after she was injured because she effectively alleged that the Agency refused to provide her with a reasonable accommodation.). The record clearly supports that the February 16, 2016 Suspension (Claim 6) arose over the Agency's failure to provide Complainant with a reasonable accommodation.
We find that the Agency's failure to address the matter of reasonable accommodations constitutes an improper de facto rejection of the allegation, and direct the Agency to include this issue in its investigation on remand. See Santos v. Dep't of the Navy, EEOC Request No. 05930922 (Feb. 17, 1994).
Complainant's allegations in Claims 1, 2, and 3 allege violations of Complainant's medical privacy. The Americans with Disabilities Act of 1990 (ADA) requires employers to treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14(b)(1). Such information includes any medical information voluntarily disclosed by an employee. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, General Principles section in Background discussion (Jul. 27, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. See Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997).
To the extent that Complainant is claiming a violation of the Health Insurance Portability and Accountability Act ("HIPPA"), the Commission has previously determined that matters concerning HIPAA are not within the regulations enforced by the Commission. See Agustin L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120161494 (Jun. 21, 2016) Grove v. United States Postal Serv., EEOC Appeal No. 0120110456 (Jan. 5, 2012); Price v. U.S. Postal Serv., EEOC Appeal No. 0120111033 (Dec. 8, 2011); (other citations omitted). HIPAA is enforced by the Department of Health and Human Services' Office of Civil Rights, therefore, the EEO complaint process the improper forum to raise a HIPAA violation. See Agustin L., supra (citing Lee v. United States Postal Serv., EEOC Request No. 0520110481 (Nov. 4, 2011)).
Accordingly, the Agency's dismissal of Claims 4 is AFFIRMED; and its dismissal of Claims 1, 2, 3, and 5/6 is REVERSED.
Claims 1, 2, 3, and 5/6 are hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E1016)
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 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 (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 (M0416)
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 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. The requests 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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.
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, Director
Office of Federal Operations
November 10, 2016
__________________
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.
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