Davina W.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

2019000982 (E.E.O.C. Sep. 24, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Davina W.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019000982

Agency No. SF-18-0924

DECISION

On April 13, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision dated November 5, 2018,
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.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Legal Administrative Specialist (Benefit Authorizer) GS-0901-9 at the Western Program Service
Center in Richmond, California.

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 With the FAD, the Agency’s Office of Civil Rights and Equal Opportunity (hereinafter equal
employment opportunity (EEO) office) provided Complainant an outdated version of EEOC’s
Notice of Appeal/Petition - Form 573 for use to file her appeal. The address therein to file an
appeal with this office is over 10 years out of date. The correct address is in the letterhead of this
decision. Accordingly, we deem Complainant’s appeal to be timely filed. There is an updated
EEOC Form 573.
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In October 2017, Complainant filed EEO Complaint 1 (SF-17-0799) alleging that Agency
management discriminated against her based on her disability and prior EEO activity, in relevant
part:

4. From May 2014 and ongoing, it failed to provide her a reasonable accommodation for her
disability;

5. From 2013 and ongoing, it subjected her to harassment in terms of leave, telework, and
reasonable accommodation.

In Complaint 1 Complainant contended that because of her sensitivity to substances such as
perfumes, air fresheners, cleaning products, and ongoing construction, she needed to increase her
telework from once weekly to full-time and needed another laptop that was not contaminated (the
Agency replaced it three times before). Mostly or fully, Complainant only worked on the days she
teleworked. Issues 4 and 5 regarded the same thing, i.e., the Agency’s failure to provide
Complainant reasonable accommodation in the form of full-time telework (primarily) and a
replacement computer, and the consequences thereof – forced to use up her paid leave, then take
unpaid leave, and then, in combination with discriminatory leave policies and/or discriminatory
application thereof, being charged Absence Without Leave (AWOL).

Complainant’s request to telework full time as a reasonable accommodation was formally denied
on January 10, 2018, by letter from the Agency’s National Reasonable Accommodation
Coordinator. In April 2018, Complainant filed EEO Complaint 2 (SF-18-0328) alleging
discrimination based on her disability when this occurred, i.e., this constituted harassment and a
denial of reasonable accommodation. She also alleged that from January 2018 and ongoing, she
was discriminated against regarding reasonable accommodation, telework, and working
conditions.3

On May 11, 2018, management issued Complainant a Notice of Proposed Removal for extensive
AWOL from October 2017 – February 2018. In June 2018, Complainant filed EEO Complaint 3
(SF-18-0604) alleging this constituted reprisal for prior EEO activity, and that because she was
not reasonably accommodated, she was forced to take paid leave, when it ran out unpaid leave,
and then, in combination with discriminatory leave policy and/or improper application thereof she
was charged AWOL, which resulted in her proposed removal. In Complainant’s investigatory
affidavit for Complaint 3, the reasonable accommodation she identified was not being granted full-
time telework, and as part of her remedy she stated she wanted issuance of a clean laptop.

The Agency accepted Complaints 1, 2 and 3 for investigation, they were investigated, and
Complainant requested hearings on them before an Administrative Judge (AJ) with the EEOC.

3 The Agency’s EEO office also ordered a supplemental investigation on issue 4 of Complaint 1
to include the January 10, 2018 denial letter, which was conducted.
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On August 8, 2018, the Agency issued Complainant a Decision to Remove her, sustaining the
proposed removal. Complainant’s employment was terminated on August 15, 2018. On October
5, 2018, Complainant filed EEO Complaint 4 (SF-18-0924), the complaint before us now, alleging
that the Agency:

1. Failed to provide her with a reasonable accommodation for her disability from June 2014
– August 2018;

2. Subjected her to harassment based on her disability and reprisal for prior EEO activity
from June 2014 – August 2018, in terms of leave, telework, reasonable accommodation,
and removal; and

3. Subjected her to disparate treatment disability discrimination based on her disability and
reprisal for prior EEO activity when it terminated her employment on August 15, 2018.

Therein, Complainant reiterated her prior allegations, i.e., that because the Agency failed to
provide her the reasonable accommodation of full time telework she was forced to take paid leave,
when that ran out unpaid leave, and then, in combination with discriminatory leave policy and/or
unfair application thereof, she was charged large amounts of AWOL. She also alleged that not
having an uncontaminated laptop contributed to this.

The Agency dismissed Complaint 4 on November 5, 2018, for stating the same claims in
Complaints 1, 2 and 3. The instant appeal followed.

Shortly after the Agency dismissed Complaint 4, by email to the parties on December 17, 2018,
the AJ with the EEOC who was adjudicating Complaints 1, 2, and 3 and other EEO complaints by
Complainant advised the Agency’s representative to ask the Agency’s EEO office to rescind the
dismissal of the termination claim in Complaint 4 so it could be processed as a mixed case under
29 C.F.R. § 1614.302(d). Thereafter, the AJ consolidated EEO complaints 1, 2 and 3, along with
four other EEO complaints by Complainant that were at the hearing stage. This did not include
Complaint 4, which was not before the AJ.

On December 20, 2018, the Agency’s EEO office, following the advice of the AJ, rescinded the
portion of the November 5, 2018 FAD that addressed Complainant’s termination. Thereafter, on
January 30, 2019, based on the EEO investigation conducted on the proposed removal allegation
in Complaint 3, the Agency’s EEO office issued a FAD under re-docketed Agency No. SF-19-
0294, finding that Complainant was not discriminated against based on disability and reprisal for
prior EEO activity when she was terminated on August 15, 2018. The FAD contained appeal rights
to the MSPB, which Complainant exercised.4

4 Complainant complained to the Agency’s EEO office that an EEO investigation was not
conducted on her removal. The EEO office rescinded the January 30, 2019 FAD, and via contractor
conducted an EEO investigation on the termination. The MSPB retained jurisdiction over and
continued processing Complainant’s appeal. The Agency represents that the MSPB found that the
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By email on April 5, 2019, the referenced AJ with the EEOC advised the parties that because the
MSPB’s adjudication of Complainant’s appeal may take some time, she removed Complainant’s
hearing requests from the active EEOC docket, without prejudice, i.e., they will be held in
abeyance pending the MSPB’s final decision.

The parties represent that the MSPB accepted jurisdiction over Complainant’s appeal, that an
MSPB Administrative Judge conducted a hearing thereon on June 3 – 4, 2019, and that they are
awaiting a decision by the MSPB. As recently as September 9, 2019, Complainant represented that
the parties are awaiting a decision by the MSPB.

On appeal from the part of the November 5, 2018 FAD that was not rescinded, i.e., renumbered
herein as issues 1 and 2 of Complaint 4, Complainant argues, in relevant part, that they involve a
later period than those covered in her other EEO cases. Regarding her termination, Complainant
argues that the Agency’s EEO investigation thereon was insufficient.

In opposition to Complainant’s appeal, the Agency argues that because the MSPB accepted
jurisdiction over Complainant’s appeal of her termination, her termination is not before the EEOC
in the instant appeal.

ANALYSIS AND FINDINGS

The Agency argues that because the MSPB accepted jurisdiction over Complainant’s appeal on
her termination, her termination is not before the EEOC in the instant appeal. We agree. Cf., 29
C.F.R. § 1614.302(c)(2)(ii). If Complainant raised, in MSPB parlance, the “affirmative defense”
of discrimination and/or retaliation for prior EEO activity on her termination, she should expect
that the MSPB’s decision on the merits of her appeal will contain petition rights to the EEOC’s
federal sector appellate function to review the MSPB’s determination on her EEO affirmative
defenses.

Because Complainant’s termination is not before us, her contention that the Agency’s EEO
investigation thereon was insufficient is not before us.

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires that prior to a request for a hearing in a
case, the agency shall dismiss a complaint that states the same claim that is pending before or has
been decided by the agency or Commission.

Regarding issues 1 and 2 of Complaint 4, as renumbered herein, we agree with the Agency that
they are identical to the claims Complainant raised in EEO complaints 1 and 2. To the extent that
issue 2 regards Complainant’s removal, the above analysis on Complainant’s termination claim
applies.

rescinding the January 30, 2019 FAD did not divest the MSPB of jurisdiction over Complainant’s
appeal.
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After the EEOC AJ resumes processing Complainant’s EEO complaints that are before her,
Complainant should provide the AJ with a copy of this decision to ensure that the AJ treats issues
1 and 2 of EEO Complaint 4, as renumbered herein, as being part of EEO Complaints 1 and 2.

The portion of the November 5, 2018 FAD that was not rescinded (issues 1 and 2, as renumbered
herein) is AFFIRMED.

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).

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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 24, 2019
Date