U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacie D.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 0120133016 Hearing No. 510-2011-00515X Agency No. APHIS-2006-01837 DECISION Complainant filed an appeal concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405(a). BACKGROUND Complainant applied for a GS-11 Entomologist position with the Agency's Animal and Plant Health Inspection Service, located in Mayaguez, Puerto Rico. On December 30, 2005, Complainant learned that she was not selected. Believing that her non-selection was discriminatory, on February 11, 2006, Complainant filed a formal complaint based on age and reprisal for prior protected EEO activity. Over three years later, on October 8, 2009, the Agency issued a final decision dismissing the complaint for raising the same claims as an earlier complaint. Complainant appealed the decision to the Commission. In our prior decision, we found that the Agency's dismissal was not supported by the record and the matter was remanded to the Agency for further processing. See Lobell v. Dept. of Agriculture, EEOC Appeal No. 0120100215 (March 31, 2011). Thereafter, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ determined that the investigation was "woefully inadequate due to the Agency's failure to maintain critical documentation pertaining to the selection process." Although the investigator attempted to obtain relevant documents, the Agency no longer had copies of the vacancy announcement, applications, or the Certificate of Eligibles. There was no evidence as to whether a panel of recommending officials was convened, interviews conducted, notes taken, or the names of the applicants. Even the selecting official was "unable to specifically recall" the events concerning the selection for Vacancy No. 2477-2005-0142. According to the AJ, the investigator could not properly investigate the formal complaint "due to the Agency's failure to meet its legal obligations to maintain documents and to timely investigate the ... complaint." Consequently, the AJ issued a Default Judgment on June 28, 2012. The parties were given a discovery period before a hearing on damages was held on November 7, 2012. On March 27, 2013, the AJ issued a decision on damages and relief. The AJ found that the Agency's failures "severely prejudiced the Complainant's ability to link her damages to the non-selection by establishing a prima facie case." Further, due to the Agency's "unjustified delay, woefully inadequate investigation, and unjustified failure to maintain records severely prejudiced the Complainant, delayed justice, and harmed the integrity of the EEO process." Therefore, the AJ found that Complainant was entitled to damages for her non-selection. Complainant was awarded: $37,000 in non-pecuniary compensatory damages; back pay from March 14, 2005 until May 15, 2005; placement in the Entomologist GS-11 position with a retroactive appointment date of March 14, 2005; and the salary for the entomologist position from the date of the decision until Complainant declines the position or the time of the offer expires, or if she accepts the position, until her employment ceases. On August 23, 2013, Complainant filed the instant appeal. Complainant challenges the denial of front pay and the length of the back pay period. Further, Complainant argues that the Agency has not fully complied with the AJ's order. ANALYSIS AND FINDINGS Timeliness of Appeal As an initial matter, we shall address the Agency's contention that the instant appeal should be dismissed on two grounds. First, the Agency argues that the appeal is untimely. Because the Agency did not issue a decision following the AJ's decision, the AJ's decision became the final order on May 8, 2013. Complainant did not file an appeal until August 23, 2013, well beyond the thirty-day time limitation. To the extent that Complainant is challenging the AJ's decision, we agree. Therefore, we shall not consider the portion of Complainant's appeal regarding the remedies awarded or denied. However, regarding Complainant's claim that the Agency has not complied with the AJ's order, the Agency asserts that Complainant failed to notify the EEO Director of the alleged non-compliance as required by 29 C.F.R. 1614.504(a). Further, the Agency argues that Complainant "has not even specified how the Agency is allegedly non-compliant". The Agency asserts that the appeal, in this regard, is premature. EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a Complainant believes that the agency has not complied with the terms of the final decision, that the Complainant shall notify the agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. Id. The agency shall resolve the matter and provide a written response to complainant. 29 C.F.R. § 1614.504(b). If the complainant does not receive a response or is not satisfied with said response, the complainant may appeal to the Commission for a determination as to whether the agency is in compliance. Id. There is no evidence that Complainant notified the Agency of her belief that it was not in compliance with the AJ's order. However, in response to the instant appeal, the Agency contends that it is in compliance and provides a brief in opposition. Therefore, in the interest of judicial economy, we will view the Agency's response as its decision on Complainant's claim of non-compliance and address the matter herein. Compliance with AJ's Order A review of the AJ's decision reflects that in awarding Complainant an Entomologist, or substantially equivalent, position in Puerto Rico, the AJ found that while Complainant had obtained disability retirement from her cemetery caretaker position, the Agency did not establish that Complainant could not, without or without an reasonable accommodation, perform the essential functions of the Entomologist position (which is generally sedentary). In her decision, the AJ noted, that if Complainant accepted the position and believed she needed a reasonable accommodation to perform the essential functions then she should begin the interactive process with the Agency as soon as possible. The Agency was advised to comply with its obligations under the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., just as would be the case with any other Agency employee. On appeal, Complainant first claims that the Agency retracted its offer of a site visit to Puerto Rico and then "forced" her to report to Mayaguez, Puerto Rico before she received her salary and leave. In follow-up statements, Complainant argues that the Agency never engaged in the "interactive process" and never intended to employ her. Complainant explains that she requested a temporary light duty assignment "until her condition improved and relocation would be possible". Most recently, in September 2015, Complainant states that her physician has advised against relocation. She notes that her pending claim with the Office of Workers' Compensation (OWCP) shows that she remains disabled. In response to Complainant's claims on appeal, the Agency contends that it has complied with the remedies granted by the AJ and that Complainant's assertions go beyond the AJ's order. The record reflects that Complainant was offered the position on May 8, 2013. Complainant initially accepted the offer, on May 14, 2013, and agreed to report for duty at Mayaguez on June 17, 2013. Thereafter, Complainant asked that her start date be delayed. Her request was granted, and Complainant was required to report on August 5, 2013. The Agency asserts that, beginning in May 2013, the parties engaged in the interactive process and identified several reasonable accommodations for Complainant in Puerto Rico. For example, she was excused from inspection, overtime, and fumigation duties. She would not have to lift anything over fifteen pounds, and the Agency began the process of obtaining specialized laboratory equipment. Moreover, the Agency offered Complainant a courtesy site visit on July 23, 2013, so she could see the facilities, her worksite, understand her duties, and work with management to identify any additional accommodations. Complainant, however, did not attend the site visit and failed to report to duty on August 5, 2013 as agreed. She was placed on excused absence from August 5, 2013 until February 7, 2014. The Agency told her to report for duty on February 10, 2014, and when she failed to do so, she was placed on AWOL (Absent Without Leave). We agree with the Agency, that it has substantially complied with the AJ's order to offer Complainant the position and engage in the interactive process to find a reasonable accommodation to perform the essential functions, if needed. The offer of an earlier visit to the facility, that Complainant alleges was improperly denied, was not part of the remedies awarded to her. The parties engaged in the interactive process, and Complainant was offered reasonable accommodations. Instead, however, in early 2014 Complainant sought a "reasonable accommodation" that "would allow me to work locally (in Louisiana) and after a trial period, upon issuance of a Medical Clearance, I could relocate." We do not find that the Agency's denial of this particular accommodation equals a violation of the AJ's order to award Complainant the Entomologist position in Mayaguez, Puerto Rico. Based on the instant record, we find that the Agency is in compliance with the AJ's March 27, 2013 order. New Claims (Identified herein as Claims 1 - 4) Finally, we note that on February 26, 2014, Complainant filed a new formal complaint based on race, color, sex, age, disability, and reprisal. Therein, Complainant alleged that she was discriminated against when: (1) on February 12, 2014, her supervisor denied her request for a reasonable accommodation (to work in Louisiana instead of Mayaguez, Puerto Rico); (2) since February 9, 2014, she has been placed on AWOL status; (3) on August 5, 2013, she was not permitted to postpone her date of return to work and compelled to request AWOL; and (4) July 2013 management refused to reschedule a site visit to the duty station in Mayaguez. While the case was pending before an AJ, the Agency filed a Motion to Dismiss. The Agency argued that the February 26, 2014 complaint raises the same claims as the instant appeal. The AJ agreed, finding that in both cases Complainant is alleging that she was denied a reasonable accommodation when the Agency would not let her work in Louisiana (instead of Puerto Rico), required her to take leave when she failed to report for duty, and was discriminatorily denied the rescheduling of her site visit. On November 21, 2014, the AJ dismissed Agency Case No. APHIS-2013-00802.2 With respect to Complainant's claim that she was denied a reasonable accommodation when she was not permitted to work in Louisiana, instead of Puerto Rico, we agree that this matter has been addressed in the instant appeal. As noted above, the Agency engaged in the interactive process with Complainant, and provided her with a reasonable accommodation in the form of the modification of her duties and specialized lab equipment. She was even invited to visit the facility in Puerto Rico prior to reporting for duty, to ensure all the necessary accommodations were in place. Most recently, however, Complainant would prefer to work her Entomologist position in Louisiana. The Agency's denial of her request does not amount to the denial of a reasonable accommodation. We note that although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002). There is no evidence in the instant record that the accommodation offered by the Agency was not effective. Further, it appears that the request to work in Louisiana is simply nothing more than a request for a change in duty station. One that follows years within the EEO process in order to obtain placement in a position she was not selected for, in Mayaguez, Puerto Rico. Regarding the remaining claims of the February 2014 complaint, we find that these matters were not addressed in the complaint presently before us. Further, based on the instant record, we are unable to properly consider the claims. Complainant should not be precluded from having these issues in the EEO process. Therefore, we shall remand claims (2) through (4) of Agency Case No. APHIS-2013-00802 to the Miami Hearings Unit for further processing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency's decision is AFFIRMED in part, and REVERSED in part. The new claims, identified as claims 2 - 4 are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER Claims (2) through (4) of Complainant's formal complaint filed on February 26, 2014 (Agency Case No. APHIS-2013-00802) is remanded to the Hearings Unit of the Commission's Miami District Office, to be scheduled for hearing in an expeditious manner. The Agency shall submit a copy of this decision and the complaint file to the Hearings Unit of the Miami District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the claims in accordance with 29 C.F.R. § 1614.109 and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (M0815) 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 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, 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 November 12, 2015 __________________ Date 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. 2 Commission records indicate that Complainant did not appeal the AJ's November 21, 2014 decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133016 2 0120133016