Hollis B,1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019002737 (E.E.O.C. Sep. 5, 2019)

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

Hollis B,1
Complainant,

v.

David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.

Appeal No. 2019002737

Agency No. 1907ATL

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 15, 2019, dismissing his 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Education
Specialist at the Jimmy Carter Presidential Library and Museum located in Atlanta, Georgia.

On November 19, 2018, Complainant initiated EEO contact alleging that the Agency subjected
him to hostile work environment harassment based on disability (Obsessive Compulsive
Disorder, Post-traumatic Stress Disorder, and Depression) and reprisal for prior protected EEO
activity (2018 requests for reasonable accommodation) when:

1. the Agency required Complainant to have an employment start date of
December 24, 2017, and

2. the Agency took an inappropriate amount of time (between April 2018 and
November 19, 2018) to provide Complainant reasonable accommodation

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.
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(office space with the ability to control artificial light sources and a
closeable door to minimize sensory distractions).

On December 20, 2018, Complainant filed a formal EEO complaint reiterating his claim of
discrimination based on disability and reprisal. Further, Complainant stated, as background
evidence for his harassment claim, a Human Resources Specialist told him “the only reason you
got this job is because of your disability.”2

On March 15, 2019, the Agency issued a final decision dismissing Complainant’s complaint,
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Further, the
Agency stated that Complainant failed to show himself aggrieved by the actions alleged or that
the actions rose to the level of a hostile work environment. The Agency stated, pursuant to 29
C.F.R. § 1614.107(a)(1), the actions alleged fail to state a claim individually or together. Finally,
the Agency found, pursuant to 29 C.F.R. § 1614.107(a)(5), Complainant’s claims are moot
because the Agency provided him reasonable accommodation within a reasonable time of his
requests.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a
complaint or a portion of a complaint that fails to comply with the applicable time limits
contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits
in accordance with §1614.604(c).

EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend
the time limit if the complainant can establish that Complainant was not aware of the time limit,
that Complainant did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence Complainant was prevented by
circumstances beyond her control from contacting the EEO Counselor within the time limit, or
for other reasons considered sufficient by the Agency or Commission.

The Commission notes that the duty to reasonably accommodate is ongoing. Complainant
alleged, in April 2018, he requested an office with the ability to control artificial light sources
and a closeable door to minimize sensory distractions, and that the Agency did not provide a
suitable office space until November 19, 2018. We find that Complainant's claim addresses an
allegation of ongoing reasonable accommodation denial and should be construed as timely
raised.

2 We note the Agency hired Complainant under the Office of Personnel Management Schedule A
Hiring Authority for individuals with disabilities.
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See Complainant v. Dep't of Health and Human Services, EEOC Appeal No. 0120130602 (Sept.
12, 2014) (agency improperly dismissed EEO complaint for untimely EEO Counselor contact
when management continued to ignore complainant's requests for reasonable accommodation,
which complainant asserted were still ongoing). The Commission has stated that because an
employer has an ongoing obligation to provide a reasonable accommodation, failure to provide
such accommodation constitutes a violation each time the employee needs it. See EEOC
Compliance Manual, Section 2, “Threshold Issues” at 2-IV.C.1.a (revised July 21, 2005). As
such, at the time Complainant contacted the counselor, he was alleging that the agency remained
unwilling to provide him with the accommodation he still needed. The record discloses that the
alleged discriminatory event occurred through November 19, 2018 and Complainant initiated
EEO contact on November 19, 2018, which is within the forty-five (45) day limitation period.

Further, we find that a fair reading of the complaint in this case reveals that Complainant is
alleging that the Agency subjected him to ongoing harassment on the bases of disability and
reprisal. The allegations in his complaint are proffered as examples of this pattern of harassment.
Therefore, the adverse actions alleged herein are factual allegations offered in support of this
ongoing discriminatory harassment claim. The Commission has held that “[b]ecause the
incidents that make up a hostile work environment claim collectively constitute one unlawful
employment practice, the entire claim is actionable, as long as at least one incident that is part of
the claim occurred within the filing period. This includes incidents that occurred outside the
filing period that the [complainant] knew or should have known were actionable at the time of
their occurrence.” EEOC Compliance Manual, Section 2, “Threshold Issues” at 2-IV.C.1.b
(citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

As such, we find the Agency improperly dismissed Complainant’s complaint on the grounds of
untimely EEO Counselor contact. Furthermore, we find, pursuant to 29 C.F.R. § 1614.107(a),
Complainant’s allegations state a justiciable claim and have not been rendered moot.3

CONCLUSION

We REVERSE the Agency's final decision dismissing Complainant's claim of harassment and
denial of reasonable accommodation. We REMAND the claims 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.

3 We note, on his formal complaint, Complainant requested $300,000 in compensatory damages
as corrective action.
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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 FAD, 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). 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 CFR § 1614.503(f) for enforcement by that agency.
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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).
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.
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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

September 5, 2019
Date