[Redacted], Alexia D., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2023000914 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexia D.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2023000914 Agency No. IRS-22-0643-F DECISION On November 18, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated October 19, 2022, 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., and Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, we REVERSE the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant applied for the position of Revenue Officer, GS-1169-09, at the Agency’s Small Business/Self-Employed Division (SBSE) in Farmers Branch, Texas. She applied for the position while residing in Stone Mountain, Georgia. After receiving a formal offer letter, Complainant contacted the Agency to inquire whether she could remain in Georgia, as she and her daughter were receiving medical care in the state. According to Complainant, the Agency informed her “that was not an option” and instructed her to file a hardship request or a request for reasonable accommodation to have her primary location changed. Complainant ultimately accepted the position. See Administrative File at 79-82. 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. 2023000914 2 Shortly after joining the Agency, Complainant initially filed a hardship request based on her daughter’s medical conditions. The Agency, however, denied Complainant’s request because Complainant’s supervisor sent the request “to the wrong place.” According to Complainant, after she learned that the Agency had denied her hardship request, she reached out to the Agency’s EEO Office and someone in that office helped her file a request for reasonable accommodation based on her “medical documentation to try to get [her] location switched to Georgia.” Complainant claimed that she met with management in March 2022 and was informed that management would make a final determination on her reasonable accommodation request at the end of April 2022. According to Complainant, she never received a response from management, and she ultimately ended up using leave to remain employed, as she could not report as ordered to Texas. Complainant later resigned from the Agency after receiving a new job offer at another agency in the Atlanta metro area. See Administrative File at 79-82. On October 3, 2022, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability and protected genetic information. Administrative File at 80. In filing her complaint, Complainant emphasized that the Agency treated her less favorably than other employees, who, unlike her, were granted their requests for relocation. Id. at 81-82. Complainant requested compensatory damages for the harm that she suffered as a result of the Agency’s actions. Id. at 80. The Agency subsequently framed her complaint in the following manner: Whether Complainant was discriminated against based on their child’s disability when Complainant’s request for a reasonable accommodation in the form of a hardship transfer was denied prior to Complainant’s accepting a position with the United States Department of Agriculture. See Administrative File at 7. The Agency ultimately dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), as the Agency found that “Complainant is not entitled to reasonable accommodation for a child’s disability.” Furthermore, the Agency found the claim to be moot under 29 C.F.R. § 1614.107(a)(5) because “[a]lthough the transfer was eventually granted, Complainant had already accepted a position with the United States Department of Agriculture (USDA).” The Agency reasoned that “[b]y accepting the USDA position, Complainant resolved her need to have a transfer, which completely eradicated the putative effects of the alleged discrimination.” See Administrative File at 7-8. This appeal followed. 2023000914 3 CONTENTIONS ON APPEAL Through her attorney, Complainant opposes the Agency’s decision to dismiss her complaint and maintains that Agency’s dismissal of her complaint was based on an erroneous interpretation of her allegations. In this regard, Complainant contends that in her formal complaint, she alleged discrimination on the bases of race (African-American), sex (female), disability (her and her daughter), and reprisal when:2 1. Complainant’s reasonable accommodation request from March 2022 for her disability in the form of telework was denied. 2. The documentation for Complainant’s reasonable accommodation request was sent to the wrong place by her supervisor. 3. The documentation for Complainant’s hardship request documentation for her daughter’s disability was inaccurate and improperly denied. 4. Complainant was ordered to perform work outside of the scope of her medical restrictions. Complainant argues that the Agency’s dismissal of her complaint was based on an incorrect interpretation of the relevant legal authorities, as “the Agency erroneously ignored the facts [] contained in Complainant’s Intake Form, Formal Complaint, and Counselor’s Report in order to dismiss Complainant’s case.” Furthermore, she asserts that the complaint is not moot “because Complainant was harmed by each of the events alleged above and has yet to receive relief for that harm.” In opposing the appeal, the Agency initially acknowledges that Complainant indicated in her formal complaint that she was “under the care of a doctor.” However, given the vague nature of this statement, the Agency argues that it properly framed the issue and analyzed the basis of disability as pertaining to only her daughter’s disability. As the Rehabilitation Act does not require federal agencies to accommodate the family members of employees, the Agency asserts that Complainant was not aggrieved by the Agency’s decision to deny her request. Furthermore, the Agency argues that the matter is moot because there is “no reasonable expectation that the alleged violation would recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination.” In so arguing, the Agency emphasizes that Complainant has not sought reimbursement of any of the leave that she used. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 disability. 29 C.F.R. §§ 1614.103, 1614.106(a). 2 Though Complainant raised the basis of protected genetic information in her formal complaint, she makes no mention of it on appeal. 2023000914 4 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). After careful review of the record, we initially find that the Agency improperly framed the complaint. Based on our fair reading of the record, we find that the complaint should be framed in the following manner:3 1. Whether Complainant was subjected to disparate treatment based on disability (association with her disabled child) and protected genetic information when the documentation for Complainant’s hardship request was inaccurate and improperly denied. 2. Whether Complainant was unlawfully subjected to disparate treatment based on disability (association with her disabled child) and protected genetic information when the documentation for Complainant’s hardship request was sent to the wrong place by her supervisor. 3. Whether Complainant was discriminated against based on her disability when Complainant’s March 2022, request for relocation as a reasonable accommodation was denied. 4. Whether Complainant was discriminated against based on her disability when Complainant was ordered to perform work outside of the scope of her medical restrictions. While we agree with the Agency that Complainant’s allegation of denial of reasonable accommodation based on her child’s disability would fail to state a claim, we find that her claim of disparate treatment based on her association with an individual with a disability is sufficient to withstand dismissal. Indeed, we note that under 29 C.F.R. § 1630.8, it is unlawful to deny “equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family … relationship.” In other words, if Complainant can establish that she was discriminated against such that she incurred a harm or loss in employment based on the disability of her children, she states a claim. In this regard, we note that in claims 1 and 2, Complainant alleged that the Agency treated her differently than other employees because of her association with her disabled child. We find that such an allegation states a viable claim of associational disability discrimination. 3 Contrary to Complainant’s contention, we find no persuasive evidence that Complainant raised the bases of race, sex, and reprisal, in her formal complaint. However, we note that Complainant will have the opportunity to add or remove bases during the EEO investigation. See Thurman L. v. Dep’t of Comm., EEOC Appeal No. 0120172169 (Aug. 30, 2017) (allowing complainant to raise additional bases prior to the conclusion of the agency’s EEO investigation). 2023000914 5 As for her claim of discrimination based on her protected genetic information, we note that the Agency did not address this basis; however, given that the GINA forbids employers from discriminating against employees with respect to terms, conditions, and privileges of employment, we find that Complainant’s claim of disparate treatment is sufficient to state a claim under the GINA. Consequently, we reverse the Agency’s dismissal of claims 1 and 2. As for claims 3 and 4, concerning Complainant’s reasonable accommodation claims based on her disability, we also find that Complainant’s allegations involve an injury or harm to a term, condition, or privilege of employment for which there is a remedy (i.e., being denied reasonable accommodation and being forced to work outside of her medial restrictions). See Yessenia H. v. Dep’t of Vet. Affs., EEOC Appeal No. 2020000139 (Dec. 10, 2019) (reinstating complainant’s denial of reasonable accommodation claim, as complainant had alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy). As such, we reverse the Agency’s dismissal of claims 3 and 4.4 The Agency also contends that Complainant has left her position rendering the matter moot. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant’s complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep’t of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. We have held that an agency must address the issue of compensatory damages when a complainant presents objective evidence that her or she incurred compensatory damages and that the damages were related to the alleged discrimination. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den., EEOC Request No. 05930386 (February 11, 1993). Consequently, where a complainant requests compensatory damages during the processing of his or her complaint, the agency is obliged to request from the complainant objective evidence of such damages. As we find no evidence that the Agency ever asked Complainant for objective evidence to corroborate her claim for compensatory damages, we conclude that the complaint is not moot, as, at a minimum, the possibility of an award of compensatory damage remains should Complainant prevail. See Arica C. v. U.S. Postal Serv., EEOC Appeal No. 2021003340 (Aug. 24, 2021); and Scotty F. v. U.S. Postal Serv., EEOC Appeal No. 0120162158 (Sept. 2, 2016). 4 To the extent the Agency asserts that Complainant is not an individual with a disability, we note that such questions pertain to the merits of the complaint and are irrelevant to whether the complaint states a claim. See e.g., Lorenzini v. Nat’l Archives and Records Admin., EEOC Appeal No. 0120101978 (Aug. 16, 2010) (agency improperly dismissed complaint for failure to state a claim on grounds that temporary leg injury was not a disability). 2023000914 6 CONCLUSION Based on the foregoing, we REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued 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. As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant's request for a final agency decision, or a statement from the agency that it did not receive a response from Complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2023000914 7 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2023000914 8 Any supporting documentation must be submitted together with the 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 (R0610) 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 (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 March 30, 2023 Date