0120171763
10-13-2017
King W.,1 Complainant, v. Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
King W.,1
Complainant,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120171763
Agency No. CSOSAEEOF170005
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's March 24, 2017 dismissal of his complaint alleging 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 Pretrial Services Officer, GS-12, in the High Intensity Supervision Unit ("HISP") at the Pretrial Services Agency ("PSA") in Washington, D.C.
On January 13, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of disability (generalized anxiety disorder, major depressive disorder, and bipolar disorder) when:2
1. As of January 13, 2017, he had not received a "Confirmation of Request" for the reasonable accommodation ("RA") request he submitted on March 10, 2016.
2. The Agency's Office of Equal Employment Opportunity Diversity and Special Programs ("OEEO") was unaware and/or had no record of his RA request and did not receive any medical documentation from the Agency until Complainant contacted OEEO in June 2016. According to a Senior EEO Specialist, as of November 21, 2016, "...it does not appear there was an intake form or record of any counseling that occurred."
3. Complainant was not aware of a "designated backup decision maker."
4. On April 20, 2016, Federal Occupational Health Service ("FOH") officials informed the Agency that they spoke with Complainant's healthcare providers and verified that he had a qualifying disability under the ADAAA. On May 27, 2016, after speaking with another of Complainant's healthcare providers, the FOH official (not Complainant's doctors) recommended that Complainant not interact with " ... any individuals who are potentially aggressive." Complainant's caseload was taken, but he was not physically moved out of his unit until August 2, 2016. As a result, Complainant's caseload was reassigned to his coworkers, so that Complainant's continued presence in the unit made it appear to his coworkers that he was available to see clients as normal, and the fact that he could not see any clients created a hostile work environment as his coworkers' workloads increased while Complainant remained in the unit, giving the perception that he was not a part of the team and his coworkers were doing his work.
5. On June 22, 2016, he submitted a written request to the Agency for his file containing any and all documentation regarding his RA in order to facilitate the Agency's gathering of necessary documentation from Complainant's other healthcare providers, but he did not receive the file until August 16, 2016.
6. In July 2016, he attempted to provide the Agency with additional medical information from two of his former doctors, and the Agency refused to accept it.
7. On August 10, 2016, OEEO informed him that the documentation that the Agency previously received from him was "sufficient" to begin negotiations. At the time an EEO Specialist had instructed him to confer with his doctors and provide another list of accommodations to the Agency, which he provided on September 16, 2016. The Agency failed to respond at all with either a denial or approval for any of his requested RAs.
8. The Agency failed to negotiate in good faith by refusing to respond directly or negotiate any RA in order to avoid liability or push liability onto him.
9. Because the nature of Complainant's disability is mental, rather than physical, the Agency failed to act within a reasonable amount of time to resolve his RA request even though Complainant submitted the appropriate documentation, and subsequent dialogue with his healthcare provider confirming his diagnosis was submitted in March 2016 and verified by FOH in April 2016.
The Agency dismissed Complainant's complaint for untimely filing, pursuant to 29 C.F.R. �1614.107(a)(2). The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written complaint with the agency that allegedly discriminated against the complainant within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint required by 29 C.F.R. �1614.105(d), (e), or (f). A complaint is deemed timely if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. �1614.604(b). An agency shall dismiss a complaint which is not filed within the fifteen- day time period. See 29 C.F.R. �1614.107(a)(2).
Where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In instances of untimely filing, the Agency must not only demonstrate that the complainant received Notice, but that the Notice clearly informed the complainant of the 15-day deadline to file. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995).
Here, the record establishes that Complainant received the Agency's Notice of Right to File ("Notice") a formal complaint on December 14, 2016, as evidenced by his signed acknowledgement of receipt. Examination of the Notice indicates that it properly states "you have the right to file a formal complaint of discrimination within 15 calendar days of receipt of this notice," emphasizing the phrase "15 days" in bold and underlined font. The record further establishes that Complainant filed his complaint by electronic mail to the Acting EEO Complaints Manager on January 13, 2017, well beyond the 15-day filing period. As such, we conclude that the Agency has met its burden of establishing that the complaint was untimely filed.
On appeal, Complainant has argued that we should excuse the untimely filing. He argues that he was left "with the impression that there was another form forthcoming," when a "Form 200" was not enclosed with the Notice. He notes that the letter accompanying the Notice stated, in relevant part, that a formal complaint "must be in writing, preferably on [Agency] Form # 200, which is provided for your convenience." He asserts the Form 200 was not enclosed in the letter. We find that even assuming the complaint form was not enclosed, the absence of this non-mandatory form was not a sufficient reason for his failure to file his written formal complaint on time. Complainant has failed to provide any explanation for why he did not contact the Agency to obtain the form in a timely manner if he wanted to use it.
Despite our affirmance of the Agency' dismissal of the complaint, we remind the Agency that it has an ongoing obligation, as Complainant's employer, to provide him with a reasonable accommodation, and that failure do so may constitute a violation each time he needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-IV(C)(1)(a) (revised July 21, 2005); Akbar v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102856 (Dec. 11, 2012); Smith v. Dep't of the Navy, EEOC Appeal No. 0120121807 (Jul. 13, 2012).
CONCLUSION
Accordingly, the Agency's dismissal of Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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. 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 (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 13, 2017
__________________
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.
2 This list is based on Complainant's Formal Complaint, as the Agency failed to enumerate Complainant's claims on its Letter of Acknowledgement and dismissal decision.
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