01A60061
03-16-2006
Kevin R. Bell, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Kevin R. Bell,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A60061
Agency No. 051000
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 2, 2005, 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. In
his complaint, complainant alleged that he was subjected to discrimination
on the basis of disability (moderate to severe central canal stenosis
resulting in back pain) when:
1. management denied his requested reasonable accommodation of
being allowed to remain at his current work location or transfer
to an open position in another nearby city rather than move to a
specific work location further away.
Background
The record shows that on an unspecified date, complainant was told that his
work location was going to move from Laguna Niguel to San Pedro,
California. Complainant made a formal request for a reasonable
accommodation on March 14, 2005, asking that he be allowed to remain in
Laguna Niguel or be moved to a position in San Diego because either
position would not increase the length of his commute to work. Complainant
maintained that his back condition prevented him from sitting for prolonged
periods of time and that if his work location were moved to San Pedro that
would increase his commute by 48 miles each way. When the agency did not
act on his request, complainant initiated the instant complaint.
The agency dismissed the claim on the grounds that the request addressed a
proposed action rather than a present action. In its final agency decision
(FAD) the agency argues that complainant's supervisor (RMO: no known
disability) told complainant on March 24, 2005 that the agency was
deferring a decision on his request because complainant was not on active
duty status at the time. RMO further said "upon your return [to work] you
may resubmit your request . . . once you have been officially informed of a
reporting date to a newly assigned duty location." According to the FAD,
complainant returned to full duty on April 18, 2005 and on June 14, 2005,
RMO notified him that his reasonable accommodation request was being denied
based on complainant's physician's assessment that complainant was not
disabled under the Rehabilitation Act. The FAD noted that the notification
further informed complainant that "a decision about your future work
location, duties and responsibilities is currently pending the outcome of
your fitness for duty and . . . [your Office of Worker's Compensation]
claim. As such you will remain at your current duty station at Laguna
Niguel until further notice." In its FAD, the agency found that since
complainant had not been moved from Laguna Niguel, his request for a
reasonable accommodation addressed a proposed action and hence his
complaint was dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).
On appeal, complainant maintains that he has since been moved from Laguna
Niguel. The agency, on appeal, maintains that, in addition to addressing a
proposed action, the claim should be dismissed because it "involved the
same claims that are currently pending before the agency in another
complaint." Agency's Appeal Brief, p. 1.
Analysis and Finding
The Commission has held that when a complaint is filed on a proposed action
and the agency proceeds with the action during the pendency of the
complaint, a "merger" between the proposal and the action results. This
principle has been discussed in cases in which the Commission is analyzing
whether there was untimely counselor contact or whether complainant is an
"aggrieved" employee within the meaning of EEOC Regulations. See Siegel v.
Department of Veterans Affairs, EEOC Request No. 05960568 (October 10,
1997) Charles v. Department of the Treasury, EEOC Request No. 05910190
(February 25, 1991); Lewis v. Department of the Interior, EEOC Request No.
05900095 (February 6, 1990).
In the present case the agency concedes that around the time the FAD was
written, complainant was, in fact, moved to San Pedro. Therefore we find
that the proposed action merged with the actual move, and hence we find
that the complaint was improperly dismissed. Regarding the agency's
argument on appeal that the claim should be dismissed because it states the
same claim as a claim currently pending before the agency, we note that the
evidence provided by the agency in this regard is inconclusive. A letter
of acceptance for case numbers CBP-05-309 and 05-4231 (date illegible)
states that one of the accepted issues is complainant's move to San Pedro,
effective August 22, 2005. It is not clear, however, whether the pending
claim is simply a disparate treatment claim or whether the agency
contemplates addressing the issue of denial of reasonable accommodation.
Accordingly, the agency's final decision dismissing complainant's complaint
was improper and is reversed. The complaint is hereby remanded to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to consolidate the remanded claim with the pending
claim under agency numbers CPB 05-309 and 05-4231 and process the claims 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 (K0501)
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 (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 16, 2006
__________________
Date