Julie Laird, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.

Equal Employment Opportunity CommissionDec 22, 1999
01992755 (E.E.O.C. Dec. 22, 1999)

01992755

12-22-1999

Julie Laird, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.


Julie Laird, )

Complainant, )

)

v. ) Appeal No. 01992755

) Agency No. T-0528-AK-F-98-H

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

(National Guard Bureau), )

Agency. )

____________________________________)

DECISION

On February 17, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), dated February 5, 1999,

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts

the appeal in accordance with EEOC Order No. 960, as amended.

Complainant contacted an EEO Counselor alleging that she was subjected to

unlawful employment discrimination when the agency failed to accommodate

her disability. Informal efforts to resolve complainant's concerns

were unsuccessful. Accordingly, on August 5, 1998, complainant filed

a formal complaint.

The agency issued a FAD dismissing complainant's complaint. The FAD

defined the claims in the following manner:

On May 29, 1998, management failed to accommodate complainant's

disability, which resulted in her leaving the work area and taking five

hours of leave; and,

On June 1, 1998, complainant was required to work in an area that was

aggravating her injury and management failed to accommodate her handicap.

The agency dismissed complainant's complaint for failure to state

a claim. Regarding the claims raised on the basis of disability, the

agency determined that �the protected status of [disability] applies

only to Competitive Technicians and not Excepted Technicians under the

Americans with Disabilities Act (ADA).� The agency also dismissed the

claims on the basis of sex<2>, stating that the alleged events failed

to state a claim of sex discrimination. Further, the FAD indicated that

complainant's continuing violation claim was unfounded.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 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. Department of the Air Force,

EEOC Request No. 05931049 (April 22, 1994).

The only proper questions in determining whether an allegation is

within the purview of the EEO process are (1) whether the complainant

is an aggrieved employee and (2) whether she has alleged employment

discrimination covered by the EEO statutes. An employee is �aggrieved�

if she has suffered direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). In the instant case, complainant claims that management

failed to accommodate her disability, which has aggravated her condition

and caused her to use leave. Complainant's claims are sufficient to

render her an aggrieved employee. Because she has alleged that the

adverse action was based on disability and sex, she has raised claims

within the purview of the EEOC regulations.

The Commission notes that in the FAD, the agency contends that

�[e]xcepted Technician's positions are based on their membership in

the National Guard. Their status for military deployment and fitness

overrides their status as a technician. Therefore, the protected status

of Disability applies only to Competitive Technicians and not Excepted

Technicians under the American's with Disabilities Act.� We find that

the agency's determination that complainant is not protected by the ADA,

goes to the merits of the complaint, and is irrelevant to the procedural

issue of whether she has stated a justiciable claim under the regulations.

See Ferrazzoli v. U.S. Postal Service, EEOC Request No. 05910642 (August

15, 1991). Therefore, the agency improperly dismissed complainant's

basis of disability and reasonable accommodation claims.

The FAD also states, without elaboration, that complainant's claim of a

continuing violation that began after her injury and surgery in 1996 is

�unfounded�. The agency has not indicated that complainant's counselor

contact was untimely nor dismissed any claims as untimely. However,

we find it important to note that the agency's analysis is improper.

The Commission has held that a failure to accommodate may constitute

a recurring violation, that is, a violation that recurs anew each day

that an employer fails to provide the accommodation. See Mitchell

v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994).

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 an

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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:

Dec. 22, 1999

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The Commission notes that complainant did not explicitly cite sex as a

basis in her formal complaint. However, the agency lists sex as a basis

in the FAD based on complainant's attachment to the formal complaint.