0120131580
08-27-2013
Jean Stern, Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Jean Stern,
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120131580
Agency No. 12R2FASJS07
DECISION
On March 20, 2013, Complainant filed a timely appeal with this Commission from the Agency's decision dated February 21, 2013, dismissing her 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 Secretary (Office Automation) at the Agency's Office of the Regional Commissioner, Federal Acquisition Service in New York, New York.
On March 29, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on her sex (female), religion (Jewish), and disability (stress) when she was subjected to a hostile work environment extending back to January 2010 when:
1. Between February 2011 and April 2011, she was denied telework while she was sick for an extended period of time;
2. On January 12, 2012, her request for telework was denied;
3. On Friday January 13, 2012, she was not allowed to leave early in order to be home by sundown as required by religious observance; and
4. On February 29, 2012, she received a proposed suspension and was then suspended for 10 workdays.
Complainant suggested in her complaint that she has been employed by the Agency for 23 years, writing they have been paying her since then. She alleged in her complaint that the ongoing discrimination started about two years prior when a new supervisor or manager took over and was inflexible regarding her schedule. She indicated that after he arrived she was unjustly suspended for five days for absence without official leave (AWOL). She wrote that she did not know her EEO rights, and suggested she did not challenge the matter.
On incident 1 Complainant alleged that she was sick, a battery of tests determined it was stress related, and she was denied any work at home.
In apparent relation to incident 2 Complainant alleged that her religious observance requires her to arrive home before sundown on Fridays (prior to the Sabbath beginning), and alleged telework would accommodate this.
On incident 3 Complainant alleged that she was originally authorized to leave early and roll her lunch hour into early leave as an accommodation so she could get home for the Sabbath, and then suddenly was told she was barred from doing so.
Complainant was suspended for failure to follow proper leave procedures and AWOL - incident 4. In her complaint, Complainant strongly suggested that she was suspended for leaving a few minutes early to make it home in time for the Sabbath. She alleged other employees leave a few minutes early, and she was not being accommodated.
The Agency dismissed incidents 1 through 3 for failure to state a claim. Regarding incident 2, the Agency reasoned that Complainant failed to clearly state why she was denied telework and how this contributed to a hostile work environment. Regarding incident 3 the Agency found that Complainant failed to establish a prima facie claim of discrimination because she did not state why she was not allowed to observe her religious practice through the proper use of leave regulations, and the record reflected no leave request being made. It did not specifically address incident 1. It dismissed incident 4, the suspension matter, on the grounds that it regarded a proposal to take a personnel action. 29 C.F.R. � 1614.107(a)(5).
While Complainant does not dispute the Agency's definition of her complaint, in her complaint she alleged that other elements of the hostile work environment included recently being charged for AWOL for the 10 or 15 minutes it takes to boot up her Agency computer, and a student aide being asked to monitor her whereabouts, resulting in an email to the manager stating she was not at her desk.
On appeal, Complainant argues that her complaint states a claim. She contends that she teleworked prior to her current supervisor.
In opposition to the appeal, the Agency argues that incidents 1 through 3 were correctly dismissed for failure to state a claim because no description of facts show how these matters contributed to a hostile work environment on a protected basis. It argues there is no record that Complainant requesting reasonable accommodation for a disability or leave to accommodate religious observance, and that telework is not a substitute for sick leave.
The Agency also argues that Complainant failed to timely initiate EEO counseling regarding incidents 1, 2, and 3. It reasons that she initiated EEO counseling on February 29, 2012, beyond the 45 calendar day limit of all these incidents, which it argues were discrete.
The Agency argues that it properly dismissed the proposed suspension matter pursuant to 29 C.F.R. � 1614.107(a)(5). The Agency then refers to information it provides on appeal that it took action on the proposed suspension on March 29, 2012, deciding to suspend her for 10 workdays. It avers that soon thereafter Complainant filed a second complaint identified as case number 12R2FASJS10 on the suspension which is "currently underway in the EEO process."
ANALYSIS AND FINDINGS
As an initial matter, regardless of whether incidents 1 through 3 are part of a hostile work environment, each independently state claims of discrimination. They all concern alleged denials of reasonable accommodation, the first disability accommodation, and the remaining religious accommodation. Claims alleging denial of reasonable accommodation state a claim. Brensinger v. Department of the Navy, EEOC Appeal No. 0120103675 (Jan. 14, 2011). The Agency's findings and/or argument that there is no record of Complainant requesting reasonable accommodation for a disability, that there was no record of a leave request for religious accommodation, that she did not say why she was denied telework, that telework is not a substitute for sick leave, and that she did not show she could not have been reasonably accommodated through proper use of leave go to the merits of Complainant's claims, and are irrelevant to the procedural issue of whether she stated justiciable claims. Id.
Regarding the proposal to suspend, once a decision is made it merges with the proposed action. Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997). On appeal, the Agency avers after it issued the decision to suspend Complainant filed complaint 12R2FASJS10 thereon is "currently underway in the EEO process." It does not state whether the complaint was accepted, and we note the decision to suspend matter was also alleged in complaint 12R2FASJS07. If complaint 12R2FASJS10 was not accepted for investigation, the Agency shall investigate the decision to suspend claim in connection with complaint 12R2FASJS07.
For the first time on appeal the Agency contends that Complainant failed to timely initiate EEO counseling of incidents 1, 2 and 3. Because it did not dismiss Complainant's complaint based on failure to timely initiate EEO counseling, we will not address the issue of timeliness. Accordingly, the Agency's dismissal of incidents 1, 2 and 3 is REVERSED.
It is unclear from a reading of the complaint whether incidents 2 and 3 regard ongoing denials of reasonable accommodation, since Complainant's need for religious accommodation is ongoing. This will be addressed in the order below.
In her complaint, Complainant also alleged that she asked for official time to prosecute her complaint, and suggested the Agency has not explained the process for requesting official time in an understandable fashion. The provision of official time is governed by 29 C.F.R. � 1614.605, and regards complaint processing. We will address official time in the order below. The complaint is remanded to the Agency in accordance with the order below.
ORDER
On remand, the Agency shall accept for investigation incidents 1, 2 and 3 as actionable claims. Regarding incidents 2 and 3, the Agency shall clarify with Complainant whether after these incidents, subsequent incidents of being denied the religious accommodations of teleworking and flexible scheduling occurred, record her response, and deem any such occurrences to be part of her complaint.
If Complainant's claim about being suspended on March 29, 2012 (incident 4), was not accepted in complaint 12R2FASJS10, it shall be accepted by the Agency for investigation in complaint 12R2FASJS07.
The Agency shall provide Complainant and her representative written instructions on how to request official time to prosecute Complainant's complaint, and process any requests for official time already made. It shall complete these actions within 30 calendar days after this decision becomes final.
Thereafter, the Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108.1 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, as well as documentation showing it has complied with the portion of this order regarding official time 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 (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 (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 27, 2013
__________________
Date
1 This does not include the official time matter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131580