0520130010
03-22-2013
Felicia Coleman, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Felicia Coleman,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520130010
Appeal No. 0120121880
Agency No. 11-61141-0268
DENIAL
The Agency timely requested reconsideration of the decision in Felicia Coleman v. Department of the Navy, EEOC Appeal No. 0120121880 (September 7, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On May 23, 2011, Complainant contacted the EEO Office regarding her EEO claims. On October 5, 2011, Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination on the bases of sex (female), disability (injured knee), and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when she was subjected to the following actions:
1. On May 10, 2011, management forced Complainant to go to Post despite her disability;
2. On April 25, 2011, there was a threat made that Complainant would be written up and constant comments made about her gender; and
3. On April 4, 2011, management ordered Complainant to put on her weapon even though she was on light duty.
In its final decision, the Agency dismissed Complainant's complaint. Specifically, the Agency dismissed claims 1 and 2 on basis that they failed to state a claim. The Agency also determined that Complainant failed to state a claim of retaliatory harassment because she claimed that she was retaliated against because she filed a claim with the Office of Workers Compensation Program (OWCP), instead of because of prior protected EEO activity. Additionally, the Agency dismissed claim 3 on the basis of untimely EEO Counselor contact.
In our previous decision, the Commission determined that Complainant alleged a series of events that occurred from April to May 2011, and these events represent a claim of harassment. The Commission found that the Agency improperly treated these incidents of harassment as individual claims instead of a single claim of harassment.
The Commission further determined that the Agency failed to understand Complainant's reprisal claim. The Commission noted that the record revealed that Complainant alleged that she was subjected to harassment based on sex, disability, prior EEO activity, and in support of her claim, she indicated that she was injured and required a reasonable accommodation through changes to her assignments.
The Commission further noted that Complainant stated in her complaint that she was assigned to a post that required her to step down and check identification, and because of the nature of this assignment, she required an accommodation. The Commission also noted that Complainant maintained that she could not carry a firearm because of her condition. The Commission determined that Complainant's claim that comments were made about her gender was not a separate claim but supported her assertion that she was subjected to harassment because of her sex. Finally, the Commission determined that the Agency improperly dismissed claim 3 for untimely EEO Counselor contact because this claim was part of Complainant's overall claim of harassment. Consequently, the Commission reversed the Agency's dismissal of Complainant's complaint and remanded it to the Agency for further processing.
In its request for reconsideration, the Agency maintains that the Commission improperly considered Complainant's untimely appellate brief. The Agency notes that Complainant filed her appeal brief on March 26, 2012, which meant the deadline for filing her brief was April 25, 2012. The Agency maintains that Complainant did not request an extension of time to file her brief until May 9, 2012, after the deadline for filing her brief had passed.
The Agency further contends that, contrary to the previous decision's finding, Complainant did not mention that she requested a reasonable accommodation in her complaint or claim that such an accommodation was denied. The Agency further maintains that Complainant's complaint consists of three isolated actions over six weeks that did not result in any "concrete" Agency action, and therefore, Complainant's complaint fails to state a claim.
As an initial matter, we note that the record is clear that Complainant did not submit her brief within 30 days of filing her appeal. The record reflects that Complainant did not file her brief until June 15, 2012, beyond the 30-day time limit. The Agency maintains that Complainant filed a motion to extend time to file a brief on May 9, 2012, but there is no record of this motion in the record. Likewise, there is no record of the Commission responding to Complainant's motion. As such, we assume arguendo that Complainant's brief was untimely and improperly considered in our last decision.
Nevertheless, we find that our consideration of Complainant's appellate brief was harmless error because the record supports the findings of our appellate decision. Specifically, the Counselor's Report for this case reveals that Complainant was injured on March 3, 2011. Consequently, Complainant was given a light duty assignment. Complainant alleged that, on May 10, 2011, management ordered employees to work at the gate, and when she asked if it included her because she was on light duty, management told her she must work on the gate. Complainant further stated that she worked on the gate checking identification, which required her to lean over and step over a high curb. Complainant stated that these duties caused her to experience extreme pressure on, and "unbearable" pain in, her right knee. Complainant further stated that on April 4, 2011, she advised management that she could not put on her weapon to go to the street because of her medical condition.
Additionally, in a May 2011 statement to the EEO Specialist in this case, Complainant's attorney alleged that Complainant did not receive a reasonable accommodation for her disability when she requested an accommodation. Complainant's attorney maintained that after Complainant was injured on March 3, 2011, Complainant submitted a doctor's note to the Agency that reflected that she was restricted from standing and could only perform desk work from March 11, 2011, until May 24, 2011. The attorney further maintained that a physician's report dated May 5, 2011, informed the Agency that Complainant's ability to stand and walk was severely limited, and she should refrain from climbing, kneeling, bending/stooping, and twisting. The attorney concluded that, although Complainant was placed on light duty, the Agency failed to provide her with a reasonable accommodation when it forced her to put on her weapon and check identification at the gate, which made Complainant violate her restrictions and resulted in an aggravation of her injuries.
In her formal Complaint, Complainant alleged that she was forced to go to Post although she was temporarily disabled; ordered to put a weapon on although she was on light duty; and threatened that she would be written up amongst constant comments about her gender.
Upon review, we find that our previous decision properly characterized Complainant's complaint as consisting of interrelated incidents of alleged harassment. In her complaint, Complainant essentially asserted that the Agency assigned her work duties outside her medical restrictions while she was on light duty, and did so because of her sex, disability, and prior EEO activity. As such, Complainant states an actionable claim of hostile work environment. Further, because claims 1 and 2 were raised within 45 days of her initial EEO Counselor contact, the Agency's dismissal of claim 3 on the basis of untimely EEO Counselor contact was improper.
The Agency contends that Complainant did not raise a reasonable accommodation claim in her complaint. However, a complainant does not have to use the specific words "reasonable accommodation" when raising such a claim. Complainant clearly alleged that she had a medical condition that restricted her from certain duties and required her to be on light duty. Complainant also clearly alleged that the Agency ordered her to work beyond her medical restrictions despite her objections. Moreover, during counseling, Complainant's attorney explicitly alleged that Complainant's claims pertain to the Agency's denial of a reasonable accommodation. As such, we find that our previous decision properly found that Complainant alleged that she was denied a reasonable accommodation.
Further, by asserting that she informed the Agency that its orders violated her medical restrictions and light duty status, Complainant both opposed actions that she believed violated EEO regulations regarding reasonable accommodation and reasserted her request and need for a reasonable accommodation. Requesting a reasonable accommodation is protected EEO activity. See EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003, at 8-6 (May 20, 1998). Likewise, the anti-retaliation provisions make it unlawful to discriminate against an individual because she has opposed any practice made unlawful under the employment discrimination statutes. Id., at 8-II.B. Consequently, we find that our previous decision properly found that Complainant's complaint includes an actionable claim of reprisal because she engaged in prior EEO activity.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has failed to demonstrate that either standard for reconsideration has been met in this case.
Accordingly, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120121880 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 22, 2013
Date
2
0520130010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130010