0120113451
12-16-2011
Veronica F. Jordan, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Veronica F. Jordan,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120113451
Agency No. 2011-23873-FAA-02
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated June 9, 2011, dismissing 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. and 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 Supervisory General Engineer at the Agency’s FAA Headquarters
facility in Washington, DC.
On May 18, 2011, she filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of sex (female)
and disability (pulmonary hypertension) when:
1. her telework was revoked in August 2010, and not restored until
May 2011;
2. she was charged leave without pay in January and February 2011.
Complainant contended that if she was allowed to telework, she would not
have been hospitalized, missed work, and been charged LWOP. The Agency
dismissed claim 1 for failure to timely initiate EEO counseling.
It reasoned that by memorandum dated July 20, 2010, Complainant’s
telework was revoked effective in August 2010, and she did not initiate
EEO counseling until March 7, 2011, beyond the 45 calendar day time limit.
The Agency dismissed claim 2 by omission. The instant appeal followed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of
the alleged discriminatory action, or in the case of a personnel action,
within 45 days of the effective date of the action. 29 C.F.R. §�
�1614.105(a)(1) & .107(a)(2).
On claim 1, Complainant argues on appeal that each day the Agency denied
her the reasonable accommodation of telecommuting was a new violation,
and each day she was denied accommodation within the 45 calendar time
limit is timely. She argues that claim 2 is timely because she initiated
EEO contact within 45 calendar days of when it occurred. She argues
the LWOP was an adverse action.
In opposition to the appeal, the Agency argues that the LWOP was not an
adverse action, and cannot be used to make claim 1 timely.
Because an employer has an ongoing obligation to provide a reasonable
accommodation, failure to provide such accommodation constitutes a
violation each time an employee needs it. Because each occurrence is a
discrete discriminatory act, however, relief usually will be limited to
occurrences within the filing period. A timely charge also may challenge
incidents that occurred after the charge was filed. EEOC Compliance
Manual Section 2, “Threshold Issues,” No. 915.003, at 2-73 and 2-74
(May 12, 2000, revised on July 21, 2005).
Applying the above law, we find that the portion of claim 1 covering the
period of January 22, 2011 to May 2011 is timely. The portion of claim
1 covering the period prior to January 22, 2011, which is more than 45
calendar day before Complainant initiated EEO counseling, is untimely.
Based upon a review of the counselor’s report and complaint,
and Complainant’s clarifying argument on appeal, we find that the
complaint contained issue 2. Complainant raised the LWOP issue with
the EEO counselor, in her complaint, and on appeal. She wanted to be on
some type of approved leave, such as advanced sick leave. Being placed
on unpaid leave, when Complainant contends paid leave was an option,
constitutes an adverse action. It is undisputed that Complainant sought
EEO counseling on claim 2 within the 45 calendar day time limit, and we
find claim 2 is timely.
On appeal the Agency also argues that if the Commission excuses the
untimely EEO counselor contact, it should still uphold the FAD because
Complainant failed to present sufficient evidence to demonstrate she was
discriminated against based on her sex and disability when her telework
was revoked. This argument is on the merits of Complainant’s complaint.
It is premature to make any ruling on the merits.
The final agency decision is REVERSED, and Complainant’s complaint is
REMANDED in accordance with the Order below.
ORDER
The Agency is ordered to process claims 1 and 2, which are set forth
in this decision, in accordance with 29 C.F.R. § 1614.108 et seq.
The only portion of claim 2 that is actionable is from January 22,
2011 to May 2011. 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.
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
December 16, 2011
__________________
Date
2
0120113451
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113451