0120093513
02-17-2010
Juan A. Talavera, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Juan A. Talavera,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120093513
Agency No. CRC0907059
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 17, 2009, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of disability (Attention Deficit Disorder) and age (61 and 62 years at
time of incidents) when:
1. Complainant received a "minimally satisfactory" rating in his
Performance Appraisal for the period from March 11, 2008 through September
30, 2008; and
2. Complainant was denied a reasonable accommodation.
The agency dismissed the claims for untimely EEO Counselor contact.
The agency noted that complainant did not initiate contact with an
EEO Counselor until February 17, 2009, but that, with regards to the
performance rating, contrary to complainant's contention that his
Counselor contact was timely because he received the rating on January
13, 2009, his signature on the document is dated November 13, 2008, thus
establishing that he was aware of the rating on that date. Because he was
aware of the rating by November 2008, the agency contends, his February
2009 Counselor contact was beyond the forty-five (45) day limitation
period and hence was untimely. The Commission finds that, on appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
As regards the claim of denial of reasonable accommodation, the agency
found that on August 29, 2008, the agency responded to his request
for a reasonable accommodation by agreeing to undertake "appropriate
accommodations [that] would be afforded to you that would allow you
to improve your focus, concentration and organization." The agency
further notes that "on November 3 2008, a partial installation of
your workstation was completed, and a sample chair with lumbar support
was provided until the arrival of your permanent replacement chair."
The agency concluded that because the agency responded to his request for
a reasonable accommodation in August, 2008, his February 2009 Counselor
contact is untimely. The Commission, however, disagrees. Complainant is
essentially alleging that the agency's response to his accommodation
request has been insufficient, and so delayed that it amounts to a
denial of the request. In his Formal Complaint, complainant states
"reasonable accommodation continues to be minimized." Complainant is
therefore alleging an ongoing violation, and we note that the record
shows that by November 2008, the accommodation had not yet been completed.
It is therefore reasonable to conclude that, notwithstanding the August
2008 agency response, complainant subsequently came to the conclusion
that the agency's response in practice was so insufficient as to amount
to a denial of the request.
Whether or not an accommodation is so delayed or defective as to
constitute a denial of the request is a merits determination that depends
on the facts of the case. However because complainant is alleging an
ongoing violation, we find that his February 2009 Counselor contact was
not untimely with regards to the claim alleging denial of reasonable
accommodation. We therefore AFFIRM the FAD in part and REVERSE the FAD
in part and REMAND the claim of denial of reasonable accommodation to
the agency.
ORDER (E0408)
The agency is ordered to process the remanded claim (reasonable
accommodation) in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claim
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 (K0408)
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 (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
February 17, 2010
__________________
Date
2
0120093513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093513