Barbara West, Complainant,v.John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity CommissionSep 13, 2004
01a43235 (E.E.O.C. Sep. 13, 2004)

01a43235

09-13-2004

Barbara West, Complainant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.


Barbara West v. National Archives and Records Administration

01A43235

September 13, 2004

.

Barbara West,

Complainant,

v.

John W. Carlin,

Archivist of the United States,

National Archives and Records Administration,

Agency.

Appeal No. 01A43235

Agency No. 0403STL

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision dismissing her complaint of unlawful employment discrimination,

brought pursuant to 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. The Commission accepts the appeal. 29 C.F.R. � 1614.504.

On November 12, 2003, complainant initiated contact with an EEO Counselor.

Complainant claimed that agency management failed to respond to her June

11, 2003 request for a reasonable accommodation, informing her on November

12, 2003, that it �had not come up with anything� to accommodate her.

Complainant also claimed that a named agency employee provided a white

co-worker extra assistance, but that when complainant herself requested

assistance, he responded with what she considered was a crude racial

remark: �You people will mess up a wet dream.�

In her formal complaint, filed on February 24, 2004, complainant alleged

discrimination on the bases of race (African-American) and disability

(thoracic outlet syndrome). In an attached narrative, complainant

stated that after contacting the EEO Counselor, the agency attempted

to resolve her claims. Specifically, complainant stated that the agency

permitted her to attempt a customer service position, which proved to

be unsuitable. Complainant further stated that an attempt was made

to place her into a �one of a kind� position, which she found to be

suitable, but which the agency determined involved too much lifting.

Complainant further stated that she felt that the above referenced remark

was racial, and noted that the agency's continuous failure to provide

her with assistance appeared to be racially motivated as well.

On March 17, 2004, the agency issued a final decision that is the subject

of the instant appeal. Therein, the agency identified complainant's

claims in the following fashion:

Failure to accommodate complainant's disability; disparate treatment;

and a disparaging remark with racial implications.

The agency dismissed the �failure to accommodate and disparate treatment�

claims for failure to state a claim. Specifically, the agency determined

that management attempted to place complainant in different positions,

as identified by complainant, and that complainant did not suffer a

negative action which could be remedied. Regarding the crude remark,

the agency dismissed this claim finding it to be untimely, finding that

complainant did not indicate when the remark was made. The agency also

noted that the speaker denied making it, and there were no witnesses.

On appeal, complainant indicates that the agency failed to provide her

with accommodations, such as rest breaks, alternative duties, special

tools or equipment, to safely perform the functions of her position,

and as a result, her condition worsened. Additionally, complainant

contends that she has been subjected to on-going harassment by a named

management official (MO), who derides her for being unable to achieve

performance standards because of her disability, threatening, verbally

and in writing, to place her on a Personal Improvement Plan (PIP).

Additionally, complainant claims that the agency's failure to reasonably

accommodate her has harmed her employment, noting that she received an

unsatisfactory performance rating, and that her within grade increase

was denied as a result.

Additionally, complainant's appeal materials reflect that she

again contacted an EEO Counselor, on March 19, 2004, concerning her

unsatisfactory performance appraisal and denial of a within-grade

increase. In the EEO Counselor's report, complainant indicated that

her performance problems were the result of a lack of a reasonable

accommodation. The report also shows that complainant indicated that

because her condition has now worsened, due to the agency's failure

to provide her with a suitable keyboard and chair as a reasonable

accommodation, she could not perform in her current position at the

rate that was required. Complainant also submits a copy of a formal

complaint filed on May 2, 2004, which alleges discrimination on the bases

of disability and in reprisal for prior protected activity, concerning

the matters addressed in the EEO Counselor's report. Complainant also

indicates that the MO in particular refused to assist her many times

over the course of her employment with the agency. Complainant also

submits a copy of the agency's acknowledgment letter, dated May 6, 2004

(Agency No. 0412STL), along with a May 13, 2004 determination accepting

the following claims for investigation, which the agency indicated was

based on disability and in reprisal for prior protected activity:

Failure to accommodate (resulting in denial of a within-grade increase

and low performance appraisal) and hostile work environment.

However, the agency dismissed complainant's �disparate treatment� claim on

the grounds that she failed to raise it with an EEO Counselor and that it

was not like or related to the other claims addressed during counseling.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. 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).

Regarding complainant's reasonable accommodation claim, the record

reflects that complainant contends that the agency failed to provide her

with the accommodations she needed to safely perform her job, and that

as a result, her physical condition worsened. We find that complainant

states an actionable claim. Moreover, in dismissing this claim, we find

that the agency improperly addressed the merits of the complaint, i.e.,

by addressing the sufficiency of its efforts to provide a reasonable

accommodation, which is irrelevant to the procedural issue of whether

complainant stated a justiciable claim under the Rehabilitation Act.

See Osborne v. Department of the Treasury, EEOC Request No. 05960111

(July 19, 1996). Accordingly, we conclude that the agency improperly

dismissed complainant's reasonable accommodation claim, and we REVERSE

that determination.

Regarding what the agency refers to as complainant's �disparate treatment

claim,� we find that the agency appears to be addressing complainant's

claim that, in addition to its failure to provide her with a reasonable

accommodation for her disability, and subjecting her to a hostile work

environment, the agency also fails to provide her with �assistance,� to

more easily perform her job, but willingly provides this same assistance

to others outside of her protected racial class. By purportedly failing

to provide her with this assistance, we find that complainant is rendered

�aggrieved� and that she sets forth an actionable claim. Accordingly,

we conclude that the agency improperly dismissed complainant's �disparate

treatment claim,� as framed herein, and we REVERSE that determination.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

Regarding complainant's harassment claim, we find that the agency erred

by considering the crude remark identified by complainant in isolation.

Moreover, the agency addressed the merits of the claim by indicating

that the speaker denied making it, and that there were no witnesses.

We determine that the agency should have considered the harassing

impact of this remark, as if it were made as claimed by complainant,

in the context of the hostile work environment described by complainant;

specifically, its failure to provide her with a reasonable accommodation,

and failure to provide her with �assistance.� Here, because of the nature

of the remark, and because it was made in response to complainant's

work-related request for assistance, we find it particularly offensive.

Moreover, we note that on appeal, complainant describes additional

on-going harassment by MO contributing to her hostile work environment,

which she also raises as part of her harassment claim in Agency

No. 0412STL, accepted for investigation by the agency in its May 13,

2004 partial dismissal. Given these circumstances, we determine that

complainant states an actionable harassment claim. See Cobb, supra.

Accordingly, we find that the agency improperly dismissed complainant's

harassment claim, and we REVERSE that determination.

In conclusion, for the reasons set forth above, we find that the

agency improperly dismissed the captioned complaint, and we REVERSE

that determination. Moreover, in light of our decision herein, we

further conclude that the specific incidents presented in the instant

complaint should be consolidated for processing to the extent practicable

with Agency No. 0412STL, given that each raise substantially similar

discrimination claims. Accordingly , we REMAND this complaint to the

agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to process the instant complaint in accordance with

29 C.F.R. � 1614.108. The agency shall, to the extent practicable,

consolidate this complaint with Agency No. 0412STL for continued

processing. 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

September 13, 2004

__________________

Date