Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120151386 Agency No. 2015-26017-FAA-03 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 12, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisory Air Traffic Control Specialist assigned at the Agency's Jacksonville, Florida Air Route Traffic Control Center. On December 31, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race, color, disability, and age when: 1. on October 7, 2014, he was issued a proposal to terminate letter for failure to maintain medical certification; and 2. on November 19, 2014, in response to his request for a reasonable accommodation, he was asked to provide additional documentation. The Agency dismissed claim 1 on the grounds that it alleges a proposed action, pursuant to 29 C.F.R. § 1614.107(a)(5). Specifically, the Agency determined that Complainant was not terminated. The Agency further dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not aggrieved. The Agency determined that its request for additional medical documentation were appropriate as part of the reasonable accommodation interactive process. Complainant, on appeal, argues that he is subjected to ongoing harassment. For instance, Complainant stated that he has repeatedly requested an extension to submit medical documentation because his physician was on maternity leave. Complainant states that after he submitted his request for reasonable accommodation, he received a response from the Acting Manager "stating no medical documentation was required and the Agency was aware of my disability...Twenty one days after 10/24/2014 (11/24/2012 late afternoon) I received a notice from [supervisor] requesting an interrogatory from me and medical documentation from my treating physician reference my disability and request for accommodation. My employer, the FAA, already has extensive documentation on file. I feel the request made by [supervisor] was done in retaliation [emphasis in its original]." Further, Complainant stated that on September 5, 2014, a named African-American employee made a request for reasonable accommodation and "received a FEDEX response and email within 3 calendar days in accordance with directives. My initial request for additional duties was on 05/28/2014 followed by verbal advisory I was disqualified to [Operation Manager]." The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, we find that Complainant has alleged discrimination based on disability when he was subjected to discriminatory harassment. In support of his claim of harassment, Complainant indicated that he was subjected to ongoing harassment and discussions about his health issues, required to provide additional medical documentation, issued a proposed termination letter and he was held to different standards based on his protected bases. As such, we find that Complainant has alleged that he was subjected to harassment. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, that the Agency shall dismiss a complaint that alleges a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Complainant states on appeal, as well in the complaint documents, that he has been subjected to ongoing harassment. Given these circumstances, the Commission determines that claim 1 cannot be dismissed on the grounds that it is a proposed action. When a proposed Agency action is purportedly combined with other acts of harassment to form a pattern of alleged harassment, an agency may not properly dismiss it on the grounds that it alleges a proposed action is discriminatory. See Settles v. U.S. Postal Service, EEOC Request No. 05970496 (April 8, 1999). As such, we find that the dismissal of claim 1 for alleging a proposed action was improper. The Agency dismissed claim 2 for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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, 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). Specifically, we find that a review of the EEO Counselor's Report reflects a series of alleged incidents that include Complainant being harassed concerning his reasonable accommodation requests by Agency management based on his race, color, disability and age. As a remedy, Complainant requested that harassment and discussions about his health issues be ceased; his supervisor, the Acting Manager and Air Traffic Manager not to supervise him; his FMLA, sick and annual leave for the last two years be restored; telework one day per week with a compressed schedule, a pay raise, and compensatory damages "for loss of wages due to disparate treatment, unnecessary medical experiences and exams." Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 July 21, 2015 __________________ Date 2 0120151386 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120151386