0120100604
04-23-2010
Laura L. Gage, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Laura L. Gage,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100604
Agency No. 200J00052009103434
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 6, 2010, dismissing her 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. The agency defined complainant's complaint as alleging
discrimination based on sex (female) and disability when she was subjected
by a hostile work environment as evidenced by the following: on April
27, 2009, her supervisor:
1. denied her the reasonable accommodation of having a specific private
office with an attached bathroom;
2. asked her if she would do laundry for him;
3. took her desk and placed two other desks in the room with her; and
4. humiliated and embarrassed her when he spoke to others about her
disability.
According to complainant, since 2002 she had a private office with its
own bathroom. She stated that her supervisor orally agreed to do this
as an accommodation for her disease so she could use a bathroom at a
moment's notice.
Complainant's office was relocated to another space on April 27, 2009.
According to complainant, on the day of the move the supervisor told her
he would be taking the new private office with an attached bathroom,
rather than giving it to her. For a time, complainant stayed behind,
claiming she would not be accommodated in the new space.
On April 27, 2009, the union, on complainant's behalf, filed a "demand
to bargain" with management about the alleged denial of reasonable
accommodation. On May 6, 2009, complainant filed a grievance in the
negotiated grievance procedure generally claiming that her supervisor
created a "hostile working condition." In a step 1 grievance decision
dated May 14, 2009, complainant's supervisor wrote in their grievance
meeting complainant conveyed that he was disrespectful and intimidating
to her in their interactions. He denied doing so intentionally, and
wrote he would strive for better communication. In the decision, the
supervisor wrote that additionally, as a means to address the issue of
duty location, he proposed moving complainant to the office with its own
restroom, but the office would have two people, and perhaps three in the
future.1 He advised that the office restroom would be for complainant's
accommodation, and the other employees would use the hallway restroom.
In her complaint which she filed on September 25, 2009, complainant wrote
that she was forced to move in July 2009, and initially described being
placed in an arrangement which is the same as set forth in the grievance
decision, except being given the hallway bathroom for her private use.
But she also wrote that she was placed in different office and her
bathroom was in an unoccupied upstairs office which had a bathroom.
Complainant alleged that she had to use sick days to accommodate herself,
and the supervisor embarrassed and humiliated her by discussing this with
people he should not have, including her co-workers. The complaint also
contained claim 2, except complainant wrote it occurred a week before
April 27, 2009.
The agency dismissed the complaint on the grounds that complainant
elected to file a grievance on the same matters first.
On appeal, complainant contends that the grievance was only about the
hostile work environment the supervisor was creating by speaking rudely
and inappropriately, not the denial of reasonable accommodation or
"the sexist remark." Complainant writes this included being threatened
with being placed in an office with others and discussing her condition
with fellow employees. She contends that the language in the grievance
decision about office and bathroom arrangements was not prompted by
her grievance.
EEOC Regulation 29 C.F.R. �1614.301 requires that where a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in the negotiated grievance procedure, an election must be
made to proceed under either the negotiated grievance procedure or the
EEO complaint procedure (part 1614). Under the regulation, an election
is indicated by the filing of a written complaint or timely grievance,
whichever is done first. It also provides that an aggrieved employee who
files a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under part 1614 irrespective of
whether the agency has informed the individual of the need to elect or
whether the grievance has raised an issue of discrimination.
As an employee of the Department of Veterans Affairs, the complainant
is employed by an agency subject to 5 U.S.C. 7121(d). Also, the record
shows that she was covered by a collective bargaining agreement that
permitted allegations of discrimination to be raised in the negotiated
grievance procedure.
We find that complainant's grievance included the claim that she was
denied reasonable accommodation when the agency advised that when
she relocated, she would no longer have a private office with its own
bathroom. This is evidenced by language in the grievance decision,
and complainant's statement on appeal that she raised her supervisor's
comments about not getting a private office in the grievance meeting.
While it appears that complainant's office and bathroom arrangements have
shifted since she relocated, we find the prior grievance covers this since
it concerned what arrangements would reasonably accommodate complainant.
Accordingly, claims 1 and 3 are dismissed since complainant filed the
grievance prior to her complaint.
We also find the grievance included claim 2, since complainant concedes
it was about the supervisor's rude and inappropriate remarks. Even if
complainant did not raise this specific example during the grievance,
it was still within the scope of the grievance.
We find, however, that any claim 4 incidents which occurred after the
grievance meeting are not covered by the grievance, as these are alleged
new violations. In her complaint, complainant indicated that after she
relocated in July 2009, she had to use sick days to accommodate herself,
and the supervisor embarrassed and humiliated her by discussing this
with people he should not have, including her co-workers. This is
a claim that the agency violated the Rehabilitation Act by violating
complainant's confidentiality, as well harassment. Accordingly, the
agency must comply with the order below.
ORDER (E0408)
The agency is ordered to process the claim that the agency discriminated
against complainant based on her disability when after she relocated to
her office's new space in July 2009, her supervisor discussed her medical
condition and need for accommodation with people who did not have a need
to know, including complainant's co-workers, 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 (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 (S0408)
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 (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
April 23, 2010
__________________
Date
1 The way the grievance decision was written, it was not entirely clear
if the supervisor proposed placing complainant in the office with the
bathroom or a nearby office.
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2
0120100604
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100604