0120121559
08-10-2012
James Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
James Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121559
Agency No. 200405122012100059
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated January 31, 2012, dismissing his 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. and 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 a Security Specialist at the Agency's Perry Point Medical Center facility in Perry Point, Maryland. On January 10, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability12 (unspecified) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Complainant was denied a reasonable accommodation.
The Agency dismissed the claim for untimely EEO Counselor contact. The Agency found that on August 3, 2001, Complainant was notified that his request for a reasonable accommodation had been granted, but that his request for telework as part of such accommodation had been denied. Furthermore, the Agency noted that Complainant was notified in July 2011 that "telework would not be a remedy due to the specific duties associated with your position." FAD, p. 1. The Agency noted that Complainant did not contact an EEO Counselor until October 5, 2011, which was beyond the regulatory time limit.
CONTENTIONS ON APPEAL
Complainant argues that a denial of reasonable accommodation is an ongoing violation and that each time the Agency fails to provide the requested accommodation constitutes a violation triggering a right to contact an EEO Counselor. Complainant maintains that from July to October, 2011, Complainant and the Agency were engaged in the interactive process inherent in a request for a reasonable accommodation, and that his October 5, 2011 EEO contact was therefore timely. The Agency argues that Complainant was offered a reasonable accommodation in July 2011 and declined the offer and then failed to contact an EEO Counselor for three months, making his Counselor contact untimely.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
Following a review of the record, we find that Complainant's October 5, 2011 Counselor contact was timely. The Agency argues that Complainant was notified in July 2011 "that telework would not be a remedy due to the specific duties associated with your position." FAD. We note, however, that a review of the record shows that the July email notifying Complainant is ambiguous. The email first notes the work limitations provided by Complainant's physician, which stated that "the best reasonable accommodation for [Complainant] at this time would be tele-work [sic] from home." The email then lists an offer of a position as a Personnel Security Specialist. The email then states "Tele-work: HRMS reviewed the request and determined that the position is not suitable for tele-work." The Commission finds that this email does not sufficiently notify Complainant that any and all requests for telework would be denied so as to trigger "reasonable suspicion" that discrimination had occurred. Instead, the email appears to indicate that the specific Personnel Security Specialist position offered by the Agency, and subsequently re-offered in a more formal fashion on August 3, 2011, was not suitable for telework, but that other positions might be, and given the reasonable accommodation interactive process, Complainant was entitled to believe that, by rejecting the offer, the Agency would come back with another offer that did include telework. It was not until an October 5, 2011 email from the Agency that definitively told Complainant that "telework is not an option" that Complainant developed reasonable suspicion of discrimination. His Counselor contact later that same day, therefore, was timely.
CONCLUSION
Accordingly, the FAD dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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. 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 (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
August 10, 2012
__________________
Date
1 Complainant listed only reprisal as a basis of discrimination. However by its very nature, a claim of denial of reasonable accommodation is a claim of discrimination based on disability.
2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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0120121559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121559