01A22290_r
07-18-2002
Angela Knox, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Angela Knox v. Department of the Treasury
01A22290
July 18, 2002
.
Angela Knox,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A22290
Agency No. 02-1080
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 20, 2002, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In its final decision, the agency determined that the complaint
was comprised of the claim that the agency subjected complainant to
discrimination on the bases of race, sex, age, disability and in reprisal
for prior EEO activity when management failed to advance her career to
the GS-9 or GS-11 level.
In its final decision, the agency dismissed complainant's complaint
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency determined that the agency �has accommodated complainant by
providing her other work to do rather than requiring her to answer the
telephone.� The agency concluded that complainant's complaint failed
to state a claim because she is requesting a disability accommodation
without demonstrating that �she is qualified for or that she has applied
for� the requested position.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The record reveals that complainant requested an accommodation for a
mental disability (depression and stress) in December 1999. The record
further reveals that the agency subsequently removed complainant from
telephone duty to other clerical duties as a purported accommodation
for complainant's condition.
As an initial matter, the Commission determines that the agency
mischaracterized complainant's complaint in its final decision. The
agency's final decision initially characterizes complainant's
complaint as merely concerning management's alleged failure to advance
complainant's career to the GS�9 or GS-11 level and does not mention
that complainant's claim involves a disability accommodation request.
However, we note that in the EEO Counselor's Report, complainant stated
that her complaint involves the agency's failure to provide her with a
permanent computer position as a response to her disability accommodation
request. Moreover, complainant's complaint stated that �although being
removed from telephone work has temporarily accommodated her condition,
she stated that the issue has not been resolved and she does not have
a permanent position.� Therefore, we determine that the essence of
complainant's complaint is the agency's alleged failure to accommodate
complainant with a permanent position.
Moreover, we note that the agency based its dismissal of complainant's
complaint for failure to state a claim on the merits of the complaint.
For instance, the agency contends that �the Complainant, at her
request, has been [provided] work that does not require her to talk on
the telephone and is being paid at the same rate as though she did use
the telephone. Accordingly, I am dismissing this complaint...because it
fails to state a claim.� We find that this constitutes an impermissible
addressing of the merits of complainant's complaint and is irrelevant
to the procedural issue of whether she has stated a justiciable claim.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996). Complainant's claim that she was not provided with a
reasonable accommodation for her disability constitutes a direct harm
to a term, condition, or privilege of employment and, therefore, states
a claim.
Accordingly, the Commission REVERSES the agency's dismissal of
complainant's complaint and REMANDS the complaint as identified herein
to the agency for further processing according to the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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
July 18, 2002
__________________
Date