0120123101
04-28-2015
Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Johnson Space Center), Agency.
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Johnson Space Center),
Agency.
Appeal No. 0120123101
Agency No. NCN-12-JSC-00019
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2012, 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 an Accounting Technician at the Agency's Cost Accounting Branch, Office of the Chief Financial Officer facility, in Houston, Texas.
On March 2, 2012, Complainant filed a formal complaint alleging that:
1. she was subjected to discrimination on the bases of disability (Fragile X Syndrome and Attention Deficit Disorder) when:
(a) on November 21, 2011, Complainant's supervisor did not respond to her August 2011 reasonable accommodation request1 in a manner Complainant believed to be satisfactory;
(b) Complainant was repeatedly harassed by her supervisor regarding the scheduling of her medical appointments; and
2. in retaliation for engaging in protected EEO activity, Complainant was subjected to false accusations and humiliation when, on February 17, 2012, her badge was removed and Complainant was escorted from the Center by security personnel.
Complainant's medical condition required that she get regular infusions, followed by a short period of recovery. She claims that her supervisor harassed her over her doctor's appointments and wanted to get the Agency doctor to agree with her Neurologist's treatment before Complainant was permitted to go on an appointment. She was also challenged when Complainant changed a medical appointment. On August 5, 2011, Complainant submitted an official request for reasonable accommodation for her medical conditions.
On August 24, 2011, when she had not received a response to her reasonable accommodation request, Complainant met with the EEO Complaints Manager. Complainant informed the EEO Complaints Manager that she did not want to file an EEO complaint at that time, but Complainant wanted to meet with the Disability Program Manager, Complainant's supervisor and the Human Resources Representative, to discuss her reasonable accommodation request. The management officials declined to meet with Complainant until after the disposition of her reasonable accommodation request.
On November 14, 2011, Complainant emailed the EEO Complaints Manager to request the form to file a formal complaint. Complainant told the EEO manager that she still wanted to file a complaint, because she believed that the Agency had not granted her reasonable accommodation request and she alleged that her supervisor was harassing her regarding the scheduling of her medical appointments.
On November 21, 2011, the Agency informed Complainant that "final disposition of Complainant's reasonable accommodation request was completed."
On November 29, 2011, Complainant signed the paperwork to file a complaint. Prior to her signing the complaint, the EEO Counselor and Complainant discussed the wording of the Complainant's allegations and the dates of the alleged incidents. At one point, the EEO Counselor averred that the Counselor "determined that the date of November 21, 2011 when the Reasonable Accommodation Disposition was signed was the appropriate date" for the alleged discrimination. On December 8, 2011, the EEO Counselor told Complainant that the EEO Counselor needed additional information to proceed with the processing of her complaint. On December 16, 2012, Complainant provided the EEO Counselor with a packet of emails and Complainant asked that the emails be associated with her EEO complaint.
In addition, the record shows that the parties were engaged in informal settlement negotiations at the time of the informal complaint processing, but the Agency and the complainant were
unable to reach an agreement. Specifically, the Agency did not grant Complainant's request that management not judge her for work when she was ill or incapacitated.
On February 12, 2012, which was the same day that Complainant agreed to mediation, the Agency sent Complainant a Notice of her Right to File the complaint, but the notice had an incorrect date of February 12, 2010. On February 16, 2012, Complainant and the EEO Counselor met for Complainant to sign a corrected Notice of Right to file. At that time, Complainant was alleging ongoing discrimination and she identified the most recent incident as occurring on January 18, 2012.
On February 17, 2012, Complainant was escorted off site and her center ID was removed.
In her complaint, Complainant alleged she has been subjected to a hostile work environment and harassment based on physical disability and reprisal by her supervisor. The EEO Counselor noted in her Counselor's Report that a second meeting had been scheduled with Complainant and the EEO Counselor, but the meeting did not take place because "on February 17, 2012, [the complainant] was escorted off the premises." The EEO Counselor requested a new meeting with the ADR Coordination and the settlement official and all parties, according to the EEO Counselor's March 26, 2012 statement.
In her formal complaint, Complainant alleged a hostile work environment and the last incident occurred on February 17, 2012.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1604.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant failed to demonstrate that she was aggrieved, concluding that the complainant "failed to establish a present harm or loss with respect to a term, condition or privilege of [her] employment." Although the Agency acknowledged that Complainant alleged that her supervisor harassed her regarding the scheduling of her doctors' appointments and the documentation which the supervisor requested, the Agency found that "these discussions do not, in and of themselves, appear to be harassing in nature" and that Complainant "did not describe how [she] perceived these discussions to be harassing activity such that it created a severe and pervasive hostile working environment."
Next, the Agency dismissed Complainant's reprisal claim, because it found that Complainant did not raise the claim with the EEO Counselor and, consequently, she had not been counseled regarding the retaliation claim.
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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In this case, Complainant maintains that, based on her medical conditions, her supervisor repeatedly harassed her about her medical appointments and the Agency failed to act in a timely and appropriate manner on her accommodation request. These are sufficient allegations to state a viable claim of both discriminatory harassment and failure to accommodate. Therefore, we find that the Agency erred in dismissing these claims.
In addition, Complainant alleged that management had her escorted from the premises and that management was motivated by animus related to her medical condition and her known EEO activity. The Agency dismissed this claim, asserting Complainant failed to seek EEO counseling on this allegation. Again, we find that this claim should not have been dismissed. This claim was clearly like or related to the matter Complainant had been counseled on and, in fact, alleged retaliation, in part, based on that counseling and her related reasonable accommodation requests.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
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 (M0610)
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 tends 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 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 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 (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
April 28, 2015
__________________
Date
1 In her accommodation request, Complainant asked that she be evaluated on work performed, rather than on what was not accomplished due to her medical condition.
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0120123101
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123101