01a43235
09-13-2004
Barbara West, Complainant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.
Barbara West v. National Archives and Records Administration
01A43235
September 13, 2004
.
Barbara West,
Complainant,
v.
John W. Carlin,
Archivist of the United States,
National Archives and Records Administration,
Agency.
Appeal No. 01A43235
Agency No. 0403STL
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dismissing her complaint of unlawful employment discrimination,
brought pursuant to Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The Commission accepts the appeal. 29 C.F.R. � 1614.504.
On November 12, 2003, complainant initiated contact with an EEO Counselor.
Complainant claimed that agency management failed to respond to her June
11, 2003 request for a reasonable accommodation, informing her on November
12, 2003, that it �had not come up with anything� to accommodate her.
Complainant also claimed that a named agency employee provided a white
co-worker extra assistance, but that when complainant herself requested
assistance, he responded with what she considered was a crude racial
remark: �You people will mess up a wet dream.�
In her formal complaint, filed on February 24, 2004, complainant alleged
discrimination on the bases of race (African-American) and disability
(thoracic outlet syndrome). In an attached narrative, complainant
stated that after contacting the EEO Counselor, the agency attempted
to resolve her claims. Specifically, complainant stated that the agency
permitted her to attempt a customer service position, which proved to
be unsuitable. Complainant further stated that an attempt was made
to place her into a �one of a kind� position, which she found to be
suitable, but which the agency determined involved too much lifting.
Complainant further stated that she felt that the above referenced remark
was racial, and noted that the agency's continuous failure to provide
her with assistance appeared to be racially motivated as well.
On March 17, 2004, the agency issued a final decision that is the subject
of the instant appeal. Therein, the agency identified complainant's
claims in the following fashion:
Failure to accommodate complainant's disability; disparate treatment;
and a disparaging remark with racial implications.
The agency dismissed the �failure to accommodate and disparate treatment�
claims for failure to state a claim. Specifically, the agency determined
that management attempted to place complainant in different positions,
as identified by complainant, and that complainant did not suffer a
negative action which could be remedied. Regarding the crude remark,
the agency dismissed this claim finding it to be untimely, finding that
complainant did not indicate when the remark was made. The agency also
noted that the speaker denied making it, and there were no witnesses.
On appeal, complainant indicates that the agency failed to provide her
with accommodations, such as rest breaks, alternative duties, special
tools or equipment, to safely perform the functions of her position,
and as a result, her condition worsened. Additionally, complainant
contends that she has been subjected to on-going harassment by a named
management official (MO), who derides her for being unable to achieve
performance standards because of her disability, threatening, verbally
and in writing, to place her on a Personal Improvement Plan (PIP).
Additionally, complainant claims that the agency's failure to reasonably
accommodate her has harmed her employment, noting that she received an
unsatisfactory performance rating, and that her within grade increase
was denied as a result.
Additionally, complainant's appeal materials reflect that she
again contacted an EEO Counselor, on March 19, 2004, concerning her
unsatisfactory performance appraisal and denial of a within-grade
increase. In the EEO Counselor's report, complainant indicated that
her performance problems were the result of a lack of a reasonable
accommodation. The report also shows that complainant indicated that
because her condition has now worsened, due to the agency's failure
to provide her with a suitable keyboard and chair as a reasonable
accommodation, she could not perform in her current position at the
rate that was required. Complainant also submits a copy of a formal
complaint filed on May 2, 2004, which alleges discrimination on the bases
of disability and in reprisal for prior protected activity, concerning
the matters addressed in the EEO Counselor's report. Complainant also
indicates that the MO in particular refused to assist her many times
over the course of her employment with the agency. Complainant also
submits a copy of the agency's acknowledgment letter, dated May 6, 2004
(Agency No. 0412STL), along with a May 13, 2004 determination accepting
the following claims for investigation, which the agency indicated was
based on disability and in reprisal for prior protected activity:
Failure to accommodate (resulting in denial of a within-grade increase
and low performance appraisal) and hostile work environment.
However, the agency dismissed complainant's �disparate treatment� claim on
the grounds that she failed to raise it with an EEO Counselor and that it
was not like or related to the other claims addressed during counseling.
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).
Regarding complainant's reasonable accommodation claim, the record
reflects that complainant contends that the agency failed to provide her
with the accommodations she needed to safely perform her job, and that
as a result, her physical condition worsened. We find that complainant
states an actionable claim. Moreover, in dismissing this claim, we find
that the agency improperly addressed the merits of the complaint, i.e.,
by addressing the sufficiency of its efforts to provide a reasonable
accommodation, which is irrelevant to the procedural issue of whether
complainant stated a justiciable claim under the Rehabilitation Act.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996). Accordingly, we conclude that the agency improperly
dismissed complainant's reasonable accommodation claim, and we REVERSE
that determination.
Regarding what the agency refers to as complainant's �disparate treatment
claim,� we find that the agency appears to be addressing complainant's
claim that, in addition to its failure to provide her with a reasonable
accommodation for her disability, and subjecting her to a hostile work
environment, the agency also fails to provide her with �assistance,� to
more easily perform her job, but willingly provides this same assistance
to others outside of her protected racial class. By purportedly failing
to provide her with this assistance, we find that complainant is rendered
�aggrieved� and that she sets forth an actionable claim. Accordingly,
we conclude that the agency improperly dismissed complainant's �disparate
treatment claim,� as framed herein, and we REVERSE that determination.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Regarding complainant's harassment claim, we find that the agency erred
by considering the crude remark identified by complainant in isolation.
Moreover, the agency addressed the merits of the claim by indicating
that the speaker denied making it, and that there were no witnesses.
We determine that the agency should have considered the harassing
impact of this remark, as if it were made as claimed by complainant,
in the context of the hostile work environment described by complainant;
specifically, its failure to provide her with a reasonable accommodation,
and failure to provide her with �assistance.� Here, because of the nature
of the remark, and because it was made in response to complainant's
work-related request for assistance, we find it particularly offensive.
Moreover, we note that on appeal, complainant describes additional
on-going harassment by MO contributing to her hostile work environment,
which she also raises as part of her harassment claim in Agency
No. 0412STL, accepted for investigation by the agency in its May 13,
2004 partial dismissal. Given these circumstances, we determine that
complainant states an actionable harassment claim. See Cobb, supra.
Accordingly, we find that the agency improperly dismissed complainant's
harassment claim, and we REVERSE that determination.
In conclusion, for the reasons set forth above, we find that the
agency improperly dismissed the captioned complaint, and we REVERSE
that determination. Moreover, in light of our decision herein, we
further conclude that the specific incidents presented in the instant
complaint should be consolidated for processing to the extent practicable
with Agency No. 0412STL, given that each raise substantially similar
discrimination claims. Accordingly , we REMAND this complaint to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the instant complaint in accordance with
29 C.F.R. � 1614.108. The agency shall, to the extent practicable,
consolidate this complaint with Agency No. 0412STL for continued
processing. 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 (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
September 13, 2004
__________________
Date