0120121175
06-14-2012
Cody R. Williams, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Cody R. Williams,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120121175
Agency No. 201224213FAA05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 9, 2011, 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 for the Agency as an Airway Transportation System Specialist at the Agency's Dallas/Fort Worth FMO facility in Texas.
On November 23, 2011, Complainant filed a formal EEO complaint alleging he was discriminated against on the basis of his disability (post traumatic stress disorder/PTSD related to his military service) when he was subjected to a hostile work environment and denied reasonable accommodation.
An examination of the complaint and related EEO counseling report reveals that Complainant alleged that he was subjected to an ongoing hostile work environment starting in March 2011, and management failed to take any action to correct the situation. Among the incidents he cited to support his claim were the following: someone wrote "CW [Complainant's initials] SUCKS" on a piece of metal for everyone to see; a co-worker went to the manager's office with a list of broken items and insinuated that Complainant was responsible; he was anonymously accused of stealing copper wire and a brazing torch, and an Inspector General investigation was initiated; coworkers made frequent negative statements about him and told others not to talk to him; his boss frequently criticized him; and a co-worker told everyone that he had messed up the floor in his maintenance building.
According to Complainant, the harassment aggravated the symptoms of his PTSD. As a result, Complainant stated he required a higher dosage of his regular medication, was placed on second medication, and was referred for group therapy. On August 22, 2011, he states he gave his supervisor a letter from his physician requesting a reassignment to another work location to alleviate the stress he was experiencing. In response, management placed Complainant on a 30-day detail assignment to another location from August 29 - October 24, 2011. Complainant claims that during this period he had a number of conversations with Agency managers about making the detail a permanent reassignment per his doctor's request, but did not receive a positive response. Complainant stated that on October 21, 2011, he presented management with a second letter from his doctor, again requesting a permanent reassignment in order to alleviate the symptoms of his condition. Complainant also filed a workers' compensation claim apparently asserting the aggravation of his PTSD was work-related. However, Complainant's supervisor ordered him to return to his old work location as of October 24, 2011.
After he was ordered to return to his old work location, Complainant asserts he continued to pursue his accommodation request for a permanent reassignment with management officials and the reasonable accommodation coordinator. He states that he provided further medical documentation, but as of his February 2012 statement on appeal, had not received approval of his request. Complainant also alleges that after he requested reasonable accommodation and provided medical documentation, he was placed on administrative duties performing non-safety related jobs and lost his shift differential pay. It is not clear from the record when this started and for how long.
The Agency dismissed the entire complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency reasoned that the last date of an incident of alleged discriminatory harassment occurred on August 29, 2011, but Complainant did not initiate contact with an EEO counselor until October 11, 2011. The Agency also stated that Complainant "knew he was temporarily detailed in order to remove [him] from an alleged hostile work environment" but that he "waited until [he] felt the effects of the alleged discrimination [was returned to his old unit], before requesting an accommodation."
The instant appeal from Complainant followed.
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.
In applying this regulation, the Agency erred in dismissing the complaint for untimely EEO counselor contact. Most obviously, with regard to the hostile work environment claim, the Agency stated that the latest incident alleged by Complainant occurred on August 29, 2011, and his initial EEO counselor contact was on October 11, 2011. Despite the Agency's assertions to the contrary, the October 2011 counselor contact was within the forty-five day limitation period.1 Moreover, Complainant is alleging ongoing disability-related harassment and only provided some examples during counseling.
Similarly, the Agency erred in dismissing Complainant's reasonable accommodation claim as untimely raised. The Agency appears to have misplaced emphasis on when it asserts Complainant made his request for reasonable accommodation, rather than when that request was apparently denied. The record shows that this was a process that occurred over several months, and not a single event on a particular day. Complainant first requested accommodation in August 2011, the Agency provided him with a temporary detail, he engaged in a number of conversations attempting to get the detail made permanent, and then presented a second request in October 2011 for a permanent reassignment. Complainant was ordered to return to his old work location on October 24, 2011, while he was in EEO counseling. Based on this sequence of events, we conclude that Complainant timely raised his denial of reasonable accommodation claim with his EEO counselor and included it in his formal EEO complaint filed in November 2011.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED for further processing as set forth in the Order below.
ORDER (E0610)
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 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
June 14, 2012
__________________
Date
1 The EEO Counselor's Report in this case records the date of initial contact as October 12, 2011. Complainant's counselor contact was timely even using this date.
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0120121175
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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