Eura B.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 6, 2020

2020004586 (E.E.O.C. Oct. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eura B.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004586 Agency No. ARCEHECSA20MAY01561 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated June 30, 2020, 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 During the period at issue, Complainant worked as a Procurement Analyst at an Agency facility in Washington, D.C. On June 16, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), disability and/or reprisal for prior protected EEO activity (Agency No. ARCEHECSA17AUG02953) when: 1. On or about October 10, 2018, despite Complainant’s request to her first-line supervisor (S1) for reconsideration and approval of advance leave to avoid financial hardship, S1 refused and placed Complainant on leave without pay (LWOP) status. This action further placed Complainant and her family in permanent financial hardship and stress because once Complainant reached 80 hours leave without pay, 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. 2020004586 2 Complainant ceased to earn leave. S1 took no action to mitigate Complainant’s financial hardship. Complainant also began to receive cancellation notices from her medical insurance, so she experienced stress about how she would pay for the medical appointments and monthly medication; 2. On or about October 15, 2018, Complainant was on a telephone call with S1 when Complainant was advised that she was placed on LWOP while she was returning from her doctor’s appointment with the letter. Complainant asked S1 if she put Complainant on LWOP. S1 said “yes.” Complainant said, “Do you realize this will place a hardship on [me and my] family?” S1 did not say anything; 3. During Complainant’s medical evaluation, she would routinely receive calls from S1, and S1’s one question was, “What’s your status?” Complainant’s reply was that she was “under medical evaluation.” Complainant’s Primary Care [physician] shared in the October 15, 2018 letter that the plan was that Complainant see several specialists to ensure a successful and full recovery and to make sure she could return to work medically safe and recover with minimal setbacks. Complainant was ordered by her primary care physician to make appointments and be to be evaluated by an ophthalmologist (eye doctor), cardiologist (heart doctor), endocrinologist (diabetes), dermatologist (skin doctor), and neuro/psychologist (diagnose and treatment psychological disorders associated with brain-based conditions); 4. On or about November 14, 2018, Complainant submitted a letter on November 19, 2018 from a doctor (D1) requesting that Complainant be permitted to telework to assess her improvement of her medical and minimize her financial hardship. Complainant received no response from the letter. S1 did not respond to the D1’s letter. In October 2018, Complainant had a leave balance but did not receive pay equal to annual leave of her balance, but again S1 to place Complainant on leave without pay. If S1 had granted S1’s request to telework, as recommended by Complainant’s D1, Complainant could have completed her medical evaluation and minimize her financial hardship. Instead, S1 ignored Complainant’s request and discriminatory actions were detrimental to Complainant’s health causing mental and physical distress and financial hardship. Complainant sent a letter dated November 13 and 21, 2018 to her United States Senator for assistance and requesting intervention regarding being placed on leave with pay by S1. On November 27, 2018, the Senator’s office acknowledged Complainant’s letter and assigned the matter to a Staff Assistant; 5. On or about November 2018, Complainant emailed her second-line supervisor (S2) during the Thanksgiving holiday and called to follow-up with her donated leave form and MyPay (S1 was on Thanksgiving leave for the holiday). Complainant did not obtain an answer and S1 threatened Complainant with disciplinary action for not following the chain of command. Complainant also spoke to another individual (retired) regarding restoring her pay. That individual said that he would look into 2020004586 3 the matter, but that telework is all about trust and he did not know Complainant; 6. On or about January 2019, Complainant submitted a letter recommendation from another doctor (D2) that she be permanently reassigned from S1’s supervision to facilitate Complainant’s recovery. On or about January or February 2019, a Colonel chaired a meeting with S1 regarding either Complainant’s reassignment or employment termination. There was a decision made to grant reassignment based upon a lack of supporting documentation to terminate Complainant’s employment. On or about February 2019, Complainant was ordered to return to work by that Colonel and that he would work out the reassignment later even though the Complainant was not medically cleared until April 2019. The Colonel also stated that Complainant had not worked for five months. Complainant was sure the Colonel was not aware that she had been attempting to work since November 2018, as requested by D1. Two days after returning to work, Complainant was reassigned to Acquisition Support Division (ASD) under another supervisor; 7. On or about February 2019, S1 denied Complainant a reasonable accommodation from her request in September and November 2018, which included Complainant’s request for reassignment; and 8. On Complainant’s 2018 annual performance appraisal, S1 rated Complainant as marginal, but Complainant was awarded the highest monetary award Complainant’s career. In its June 30, 2020 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s initial EEO Counselor contact was on May 10, 2020, which it found to be beyond the 45-day limitation period. The Agency also found that Complainant states the same claim as those previously raised in another complaint by Complainant. The Agency cites Agency No. ARCEHECSA18NOV04375 as the previously dismissed matter. The instant appeal followed. On appeal, Complainant argues that the instant complaint deals solely with LWOP, not leave balance or leave management. Complainant clarifies that the previous dismissal, in Agency No. ARCEHECSA18NOV04375, related to leave restriction and leave management, and does not address the LWOP allegations. Complainant asserts that leave management and leave balance are unrelated to LWOP. Complainant argues that her contact with an EEO Counselor was not untimely because she contacted a Counselor in October 2018 and November 2018 regarding LWOP. Complainant avers that the EEO Counselor failed to include the LWOP claim with a complaint identified under Agency No. ARCEHESCA17AUG02953 complaint. Complainant states that the AJ in that complaint stated that Complainant was entitled to a new EEO complaint regarding LWOP. 2020004586 4 The Agency does not respond to Complainant’s appeal. ANALYSIS AND FINDINGS As an initial matter, we find that Complainant is alleging a hostile work environment on the basis of race, color, disability, and reprisal comprised of various incidents including the following matters: being denied a reasonable accommodation and being continuously placed on LWOP status. Dismissal for Untimely EEO Counselor Contact The Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. We will first focus on claim 7, which expressly identifies a claim relating to the denial of a reasonable accommodation. Complainant alleges that the discrimination took place from October 2018, forward. Complainant’s claim of a hostile work environment claim therefore consists, in part, of an ongoing denial of a reasonable accommodation. The EEO Compliance Manual, Section 2, “Threshold Issues,” p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.” In the instant matter, we find that Complainant timely initiated EEO contact regarding her ongoing denial of a reasonable accommodation claim. Regarding the remaining claims, we find that while these claims do not individually articulate a reasonable accommodation denial, they primarily contain a nexus to the reasonable accommodation claim discussed above, in claim 7. For example, in an attachment to her formal complaint, Complainant alleges that she experienced a medical emergency on October 1, 2018. Complainant states that, from the beginning, S1’s conduct toward her regarding her medical condition was alarming. Complainant states that, even though she spoke directly with S1 about her absence due to her medical emergency, S1 called Complainant’s daughter to inquire about her whereabouts. Complainant states that, from October 2018 forward, S1 denied Complainant’s leave requests and requests to telework. Complainant states that, on or about November 14, 2018, she submitted a letter from D1 requesting that she be permitted to telework to assess her medical condition. At this point, if not earlier and ongoing, Complainant sought a reasonable accommodation. Complainant’s claims regarding LWOP are connected to her hostile work environment claim related to her denied reasonable accommodation requests. Finally, we note that claim 8 (regarding a “marginal” performance appraisal), appears a somewhat separate issue from the above claims. However, 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. 2020004586 5 This includes incidents that occurred outside of the filing period that [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,117 (2002)). Dismissal for Stating the Same Claim The Agency dismissed the instant formal complaint on the alternative grounds that the material facts of the instant case are contained in a current or previously raised claim. The Agency stated that Complainant’s claims are identical to those raised in Agency No. ARCEHECSA18NOV04375, which the Agency stated was dismissed. The Agency does not provide the formal complaint for Agency No. ARCEHECSA18NOV04375, or even the dismissal of that formal complaint. We are unable to assess whether the claims in this instant complaint are identical to those in Agency No. ARCEHECSA18NOV04375 and, therefore, cannot affirm the Agency’s dismissal on this basis. We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 2020004586 6 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found athttps://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004586 7 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 October 6, 2020 Date