0120172344
09-19-2017
Leonardo M,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leonardo M,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120172344
Agency No. 5N1L17001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 23, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Construction Manager at the Agency's Office of Construction Management, Joint Base McGuire-Dix-Lakehurst facility in Trenton, New Jersey.
Complainant indicated that he applied for ten positions but has not been selected. In support of his claim, Complainant pointed to one position for which he applied in July 2015. Complainant also indicated that he was injured at the fitness center in December 2013. Following the injury, Complainant indicated that the Flight Chief failed to provide him with reasonable accommodation. Complainant stated that he needed physical therapy three times a week. Complainant was required to take annual leave to attend therapy sessions rather than the Flight Chief processing his claim with the Office of Workers Compensation Programs (OWCP). The Chief seemed to believe that Complainant was faking the injury. Complainant provided the Chief and Flight Chief with a "prescription" from his physician requesting a private room for Complainant three times a day for electrical stimulation as well as 15 minute naps to help him with sleep apnea. Complainant was told to just close his door and place a "do not disturb" sign on his door and to nap when his co-workers went to lunch. Complainant followed the Agency's orders, however, he indicated that the Chief threw away the sign on his door on two occasions. In addition, Complainant charged the Chief with changing the directions on the blinds so that he can look into Complainant's office while he was doing his therapy. In December 2014, Complainant indicated that he was returned to work for full duty but noted that he still needed to continue therapy. The Flight Chief told Complainant on January 9, 2015, that there would be no physical therapy during work hours and that Complainant could do that on his own.
Through 2015 and 2016, Complainant indicated that he was working with management to address the Agency's violations of civil rights. Complainant believed he had been subjected to four civil rights violation: harassment, age discrimination, denial of reasonable accommodation, and harassment for requesting reasonable accommodation. Based on the Agency's failure to resolve the matter through management, Complainant determined that he needed to contact the EEO Office.
On January 19, 2017, Complainant contacted the EEO Office. The EEO Counselor asked Complainant why he failed to contact the EEO Counselor within the 45 day limit. Complainant informed the EEO Counselor that he tried to speak with leadership to resolve the problem, as such he proceeded to the EEO complaint process to address his claims. The matter was not resolved informally. On March 31, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination. Complainant provided a narrative alleging that he was subjected to discrimination on:
A. On December 13, 2013, Complainant was injured while on the job. HE asserted that the Flight Chief denied Complainant's claim with the OWCP and required him to return to work on May 5, 2013.
B. In May 2014, Complainant provided his medical based request for reasonable accommodation in the form of allowance for 15 minute daily naps and a private room for 15 minutes three times a day for his physical therapy.
C. Complainant asserted that when he tried to use his reasonable accommodations, management took actions against him including removing signs and checking in on him.
D. The Chief told the Flight Chief that Complainant was "faking it."
E. The Flight Chief failed to enforce Complainant's reasonable accommodation requests in May 5, 2015.
F. Complainant was subjected to harassment in retaliation for requesting a reasonable accommodation. In support of his claim, Complainant asserted that he was denied promotions in July 2015 and January 2016 as well as a lower performance appraisal in October 2014.
The Agency took Complainant's narrative and organized Complainant's claims of discrimination in to the following allegations:
1. On the basis of age (65) when: on January 19, 2016, Complainant was not selected for a GS-11 Engineering Technician vacancy by his first line supervisor (Supervisor) and the Flight Chief.
2. On the basis of reprisal (requesting reasonable accommodation under the Rehabilitation Act) when Complainant was subjected to harassment. In support of his claim of harassment, Complainant indicated that the following events occurred:
a. On or about December 13, 2013, Complainant's claim pursuant to OWCP was denied by the Flight Chief.
b. On or about May 5, 2015, Complainant's request for reasonable accommodation was not enforced by the Chief or the Flight Chief.
3. On the bases of disability and in retaliation for requesting reasonable accommodation when:
a. On or about October 14, 2014, Complainant received an unsatisfactory rating on his civilian appraisal by the Flight Chief.
b. On or about July 17, 2015, Complainant was not selected for a GS-11 Engineering Technician vacancy by his first line supervisor (Supervisor) and the Flight Chief.
c. On or about January 2016, Complainant was not selected for a GS-11 Engineering Technician vacancy by his first line supervisor (Supervisor) and the Flight Chief.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency determined that Complainant's claim (1) was 367 days untimely; claim (2)(a) was over a 1000 days untimely; claim (2)(b) was 635 days untimely; claim (3)(a) was 828 days untimely; claim (3)(b) was 552 days untimely; and claim (3)(c) was 384 days untimely. Complainant's contact was well over 45 days after the date of claims of discrimination. In addition, the Agency dismissed claim (2)(a) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that such a claim constituted a collateral attack on OWCP which is not properly raised in the EEO complaint process.
This appeal followed. Complainant is represented by an attorney (Attorney) who indicated that Complainant alleged discrimination when he was subjected to disparate treatment; harassment based on age and reprisal; and denial of reasonable accommodation.2 The Attorney argued that the Agency does not have the authority to dismiss the complaint. Further, she requested that the Commission find in Complainant's favor that he has been subjected to unlawful discrimination and provide him with all the relief requested. The Agency asked that the Commission affirm its decision.
ANALYSIS AND FINDINGS
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint 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. 29 C.F.R. �� 1614.103, .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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense , EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Upon review of the record, Complainant clearly alleged discrimination in claim (2)(a) based on the Agency's failure to process his claim with the OWCP. The proper forum for Complainant to have raised his challenges to actions which occurred as part of the OWCP process was within that forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the OWCP process. Thus, we find that claim (2)(a) regarding the Agency's failure to process his OWCP claim is properly dismissed.
Untimeliness
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
A review of the record shows that Complainant alleged a series of events from his injury in December 2013 through January 2016. Complainant asserted that he was denied promotions, given lower performance appraisals and denied reasonable accommodation. We note that Complainant was clearly told on January 9, 2015, that his accommodation was denied. Complainant did not indicate that he made any other request for a reasonable accommodation. Complainant asserted that he was trying to resolve the issues involving his denial of promotions with the management for years. Complainant still waited another year from the date of the most recent event before contacting the EEO Counselor regarding any of his claims of discrimination. The Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. U.S. Postal Serv., EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S. Postal Serv., EEOC Request No. 05910291 (April 25, 1991); Ellis v. U.S. Postal Serv., EEOC Request No. 01992093 (Nov. 29, 2000). Therefore, the Agency properly dismissed claim on the grounds of untimely EEO Counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
September 19, 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 We note that the Attorney argued that Complainant was subjected to discrimination in violation of the Americans with Disability Act. We remind the Attorney that federal employees are covered under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
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