0120142475
11-25-2015
Harrison S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Information Systems Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harrison S.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Appeal No. 0120142475
Agency No. DODDISA14013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated April 16, 2014, dismissing his 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 Supervisory Information Technology Specialist at the Agency's Europe facility in Stuttgart, Germany. On February 18, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (unspecified) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On November 5, 2013 Complainant was subjected to a hostile work environment by his supervisor (S) when she required him to provide medical documentation regarding absences of two consecutive days, threw complainant out of her office after screaming at him, and made misleading remarks regarding the Family Medical Leave Act (FMLA);
2. on December 11, 2013, a Management Official (MO) denied Complainant a compassionate tour curtailment for an illness in his immediate family;
3. Complainant was not selected for various unspecified positions between December 2013 and February 2014; and
4. On November 5, 2013, S denied Complainant a reasonable accommodation.
The Agency addressed claims 1 through 3 and dismissed the claims on various grounds, but did not address claim 4. The Agency dismissed Claim 1 for failure to state a claim, finding that Complainant had not been subjected to any adverse action or denied any entitlement with regard to a term, condition or privilege of employment. With regard to claim 2, the Agency dismissed the claim for mootness noting that his tour curtailment was subsequently granted, and that Complainant no longer worked for the same supervisor, or indeed for the Agency, hence there was no expectation that the alleged violation would recur. With regard to claim 3, the Agency found that the matter had not been raised before the EEO Counselor and was not like or related to claim brought before the EEO Counselor.
ANALYSIS AND FINDINGS
We note initially that the regulation set forth at 29 C.F.R. � 1614.403(d) states that "any statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal." The record shows that Complainant's appeal was filed on May 16, 2014 but his appeal brief was not filed until August 11, 2014. The Agency has requested that the Commission decline to accept Complainant's appeal brief and we grant the Agency's request.
Harassment
With regard to claim 1, the Agency found that "Complainant was not subjected to any adverse action nor was he denied any entitlement with regard to a term, condition, or privilege of his employment as a result of the alleged incidents." Dismissal, p. 2. We note that the standard enunciated by the Agency applies to claims of disparate treatment but not harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Complainant alleges that S required him to provide medical documentation regarding absences of two consecutive days, threw him out of her office after screaming at him, and made misleading remarks regarding FMLA. Following a review of the record we find that such actions are insufficiently severe or pervasive to state a valid claim of harassment.
Furthermore, to the extent Complainant is alleging he was subjected to disparate treatment, we find that 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), and Complainant's allegations do not show he suffered a present harm or loss with respect to a term, condition or privilege of employment.
Mootness
With regard to claim 2, the regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
The Agency found that following the denial of Complainant's compassionate tour curtailment, on February 3, 2014 the Agency changed its mind and granted Complainant the following:
1) Approval of tour curtailment, and release from transportation agreement;
2) Payment of both inbound and outbound PCS costs;
3) Remain in Family Medical Leave Act (FMLA) status until 18 FEB 2014, and leave without pay (LWOP) status thereafter, until 17 AUG 2014, upon which his resignation will be effective on 18 AUG 2014;
4) Placement on Priority Placement Program (PPP) for referral to federal jobs for which he qualifies in the Oklahoma City vicinity, upon approval of Washington Headquarters Services (WHS);
5) Extension, at [Complainant's] request, of 90 days for Storage in Transit of Household Goods (HHG), originally set to expire on 5 FEB 2014; and
6) Reimbursement for Emergency Visitation travel.
The Agency further found that Complainant's tour curtailment meant that he was no longer working for S and Complainant's resignation meant that he was not longer working for the Agency, so that it could reasonably be said that both prongs (1) and (2) of the mootness test had been met. We agree.
The record further reflects that Complainant requested compensatory damages. The Commission has held that an agency must address the issue of compensatory damages when a complainant shows objective evidence that she has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for reconsideration denied, EEOC Request No. 05930306 (Feb. 1, 1993). The Commission has further held that the Agency should request that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. U.S. Postal Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep't of Def., EEOC Appeal No. 01932422 (Dec. 3, 1993). In the instant case the Agency made such a request of Complainant, but Complainant failed to produce such evidence. We therefore find that the Agency correctly found that the matter was moot.
Nonselection
In his Formal Complaint, Complainant in a brief sentence states that "[b]etween December and February, [Complainant] was also denied positions by [the Agency] because of his protected activities and disability." On appeal, however, the Agency points out that Complainant, provided no additional specific details concerning the positions he was denied and whether or not he had even applied to such positions. Generally, a claim of discriminatory nonselection fails to state a claim when complainant fails to apply for the position. See Owen v. Social Security Administration, EEOC Request No. 05950865 (December 11, 1997). Because Complainant has not identified specific vacancies to which he applied we find that he fails to state a claim.
Reasonable Accommodation
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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). In his Formal Complaint, Complainant alleges, among other things, that S threw him "out of her office to discourage him from filing a reasonable accommodation request" which is sufficient to state a claim of denial of reasonable accommodation. We find that such a claim is like or related to Complainant's claims in his Informal Complaint wherein he alleged that he had a physical disability, that his disability caused him to miss days from work, that he had been disciplined for missing two days from work and had been told he needed to provide medical documentation, that he told S that 12 weeks of FMLA leave was not going to cure his chronic disability, and that S told him he needed to be in the office every day. On appeal, the Agency notes that "Complainant specifically stated he did not request a reasonable accommodation because [S] asked him to leave her office before he could request a reasonable accommodation," Agency Appeal Brief, p. 5. We find that being denied the opportunity to make a request is analogous to the denial of said request and hence Complainant states a valid claim of denial of reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Dismissal in part and REVERSE in part and we REMAND claim 4 for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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
November 25, 2015
__________________
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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