0120160228
01-21-2016
Xochitl B.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Xochitl B.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120160228
Agency No. Misawa AB Docket No. 9T0R15001
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 26, 2015, dismissing her 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 Child and Youth Program Assistant at the Agency's Child Development Center and at its Youth Center located at the Misawa Air Force Base in Japan.
On July 20, 2015, Complainant filed a formal complaint alleging that the Agency harassed and discriminated against her based on her disability (broken arm) when:
1. On May 1, 2015, she was not reasonably accommodated within the Child Development Center after coming to work with a hard cast on her arm;
2. On May 1, 2015, she was removed from the Child Development Center's work schedule and her duty hours were reduced;
3. The Child Development Center trainer told Complainant that she would be terminated if did not complete her three standard modules within the first three months of employment;
4. Sometime on or after May 1, 2015, her initial doctor's note was left out in the open on an Agency official's desk, and was never sent to the Human Resource Office;
5. On June 8, 2015, Complainant's manager at the Child Development Center denied the suggestion of an Agency official to place Complainant in the preschool classroom instead of the infant room while observing her conducting her primary task with the full arm cast when other accommodations were available;
6. On June 10, 2015, the Human Resource Office processed a management reassignment for Complainant to work at the Youth Center with a "not to exceed date"; and
7. On June 15, 2015, the Director of the Youth Center informed Complainant that the Flight Chief asked the Director to pass a message to Complainant to "shut her mouth" about her future plans pertaining to any of the previous listed circumstances.
In a timeline, Complainant indicated that she injured her wrist by April 21, 2015, and initially wore a wrist guard. On May 1, 2015, she was diagnosed with a scaphoid fracture of the wrist and was placed in a full arm cast. She wrote that on May 2, 2015, her doctor released her back to work, and later reiterated this. Complainant wrote that with the intervention of Agency "Legal," on June 1, 2015, she was informed she would return full time to the Child Development Center on June 5, 2015. The record does not reflect when her cast was removed.
The Agency dismissed the complaint for failure to state a claim. It reasoned that to state a claim under the Rehabilitation Act, a complainant must claim a disability. Citing a 1988 EEOC case, the Agency found that minor temporary medical conditions that merely interfere with but do not significantly limit a person's ability to perform do not constitute a disability. The Agency found that a broken arm, absent some other complication or long-term incapacity, is not considered a disability.
ANALYSIS AND FINDINGS
The Americans with Disabilities Act (ADA) was amended in 2008 by the ADA Amendments Act (ADAAA). The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain coverage under the ADA. 29 C.F.R. � 1630.1(b)(4). Accordingly, the Commission construes disability broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. Id.
Under the transitory and minor exception, a transitory impairment does not have to last for more than six months in order to be considered substantially limiting under the first two prongs of the definition of disability. The duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only a short period of time are typically not covered, although they may be covered if sufficiently severe. 29 C.F.R. Part 1630 Appendix - Section 1630.2(j)(1)(ix).
At this point, the record does not reflect the duration and severity of Complainant's impairment. Given all the above, we find that the Agency has not shown as a matter of law that Complainant is not an individual with a disability. This is a determination that must be made on the merits after an investigation.
Accordingly, the FAD is REVERSED.
ORDER (E0610)
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 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 (M0815)
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, 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 (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
January 21, 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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