0120142216
10-21-2014
Complainant, v. Elizabeth L. Littlefield, President and Chief Executive Officer, Overseas Private Investment Corporation, Agency.
Complainant,
v.
Elizabeth L. Littlefield,
President and Chief Executive Officer,
Overseas Private Investment Corporation,
Agency.
Appeal No. 0120142216
Agency No. 1401LA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 24, 2014, dismissing a formal 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
During the period at issue, Complainant worked as a Legal Assistant at an Agency facility in Washington, D.C.
Complainant suffered a stroke that resulted in her absence from work beginning in January 2013. Complainant alleged that her supervisor coerced her to return to work around June/July 2013, despite Complainant feeling as if she was not yet medically ready to do so. At the time she did return to work, there were approximately three months remaining in the fiscal year. Complainant received an unsatisfactory rating for the 2013 fiscal year and was placed on a performance improvement plan (PIP). On or about January 15, 2014, Complainant received notice that she had failed the PIP and that her supervisor would be proposing her removal from federal service.
On or around January 16, 2014, Complainant requested EEO counseling. Informal efforts to resolve her concerns were unsuccessful. Around this same time period, the Agency began to process Complainant's removal. The record is not clear when Complainant received the actual notice of proposed removal, but it appears she received it no later than March 2014. She subsequently received a final notice of removal that indicated that her removal was effective on April 14, 2014. Prior to the effective date of her removal, Complainant retired from the Agency.
On March 22, 2014, Complainant filed her formal EEO complaint. A fair reading of the complaint with the related EEO counseling materials shows that Complainant claimed that the Agency subjected her to a discrimination, including a hostile work environment, on the bases of race, disability and reprisal for prior protected activity when:
1. after her return to work following her stroke, Complainant was denied reasonable accommodations for her disability; and
2. Complainant received an unsatisfactory performance appraisal for the performance year ending September 30, 2013, was placed on a PIP, notified that she had failed the PIP on January 15, 2014, and her removal from employment was proposed.
On April 24, 2014, the Agency issued a final decision dismissing the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant did not return to work with a request for reasonable accommodation, apart from certain limitations noted in her doctor's note. The Agency also determined that Complainant did not subsequently request other reasonable accommodations prior to her request for EEO counseling in January 2014.
The Agency dismissed the formal complaint on the alternative grounds of mootness. The Agency found her claims were moot because Complainant chose to retire prior to the effective date of her removal from Agency employment. The Agency also noted that while Complainant sought compensatory damages in her formal complaint, her case was still moot, as the Agency determined that Complainant never requested a reasonable accommodation prior to seeking EEO counseling.
The instant appeal followed. On appeal, Complainant's attorney asserts that Complainant was subjected to various incidents of harassment, such as being placed on a PIP and found to have failed the PIP. Complainant's attorney notes that Complainant was given a notice of proposed removal and a removal determination, but that she chose to retire before the effective removal date. Complainant's attorney argues that the formal complaint has not been rendered moot because the Agency actions were equivalent to a constructive discharge.
ANALYSIS AND FINDINGS
Dismissal: Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency dismissed the claims for failure to state a claim. We find that the Agency's justification for dismissing - that Complainant never requested as accommodation - goes to the merits of the claim, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). The Agency has conceded that Complainant presented a note from her physician prior to returning to work that contained a number of medical restrictions. Complainant also claims on appeal that she verbally requested a number of accommodations to her supervisor, both on the telephone when she asserts she was being pressured to return to work and after she did return. Finally, Complainant claims that she was denied a request to telework after her submission of her doctor's May 29, 2013 note stating that she, "...may return [to work] on a trial basis with the following initial restrictions: starting July, patient should work from home until 10/2013." These allegations are sufficient to state a valid claim of a denial of reasonable accommodation. We also note that Complainant has alleged that she was discriminatorily placed on a PIP, judged to have failed the PIP and her removal was proposed. All of these additional allegations also state a viable claim of discrimination.
Dismissal: Mootness
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that an agency shall dismiss a complaint that is moot. To determine whether the issues raised in complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
The formal complaint addressed a variety of alleged actions, including denial of reasonable accommodation requests, being placed on a PIP, and being subjected to a proposed removal, all which, if found to be discriminatory would entitle her to a variety of remedies, including compensatory damages. Therefore, we do not find that Complainant's claims of discrimination have been rendered moot by her retirement. Moreover, we note that within weeks of filing her formal complaint, Complainant was served with a final removal notice and, as a result, Complainant alleges she was forced to retire in lieu of termination. Thus, Complainant has also raised a claim of constructive discharge. Thereafter, Complainant should be given the opportunity to amend her formal complaint to include the constructive discharge claim.
Accordingly, the Agency's final decision is REVERSED. The instant formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (denial of reasonable accommodation and hostile work environment, including unsatisfactory performance appraisal, Performance Improvement Plan and proposed removal) in accordance with 29 C.F.R. � 1614.108 et seq. In addition, the complaint shall be amended to include a claim of constructive discharge. 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
October 21, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
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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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