U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Devona V.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120141665 Agency Nos. HS-CBP-21785-2012 and HS-CBP-00162-2013 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated March 5, 2014, concerning 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., 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. Upon review, the Commission finds that three claims of Complainant's complaint were improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. ISSUE PRESENTED The issue presented is whether the Agency properly dismissed three claims pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (CBPO) at the Agency's Blaine Port of Entry facility in Blaine, Washington. As a CBPO, Complainant was expected to work 16-hour shifts (eight hours plus eight hours of overtime). In July 2009, Complainant was diagnosed with spinal stenosis with spondylolisthesis. On August 11, 2009, Complainant requested a reasonable accommodation consisting of a daily shift of a maximum of 12 hours (eight hours plus four hours of overtime). The Agency subsequently requested medical documentation and information from Complainant's physician. On December 28, 2009, the Area Port of Blaine Service Port Director issued Complainant a letter, which states, in relevant part: This letter responds to your reasonable accommodation request submitted on or about August 11, 2009, to [the] EEO Manager [] via submission of a note from your physician, [], which stated that you were under his care for deteriorating back pain "aggravated by excessively prolonged shifts." Based on his examination of your condition, [your physician] recommended that you work no more than 12 hours in a 24 hour period. During your interactive dialogue session with [the] EEO Manager [] on September 14, 2009, you indicated that your reasonable accommodation request was prefaced on conditions diagnosed as Spinal Stenosis. You explained that you were working eight (8) hours of overtime totaling sixteen (16) hours a day, and that the extra hours result in "terrible back pain." You further stated that the only prob1em is the sixteen-hour shifts and, if limited to work twelve-hour shifts, you should be "good to go" for years. Your treating physician [] provided a medical assessment which indicated that you have a Grade I spondylolisthesis of L4-5 that causes back pain with prolonged standing and limits activities. He opined that standing causes axial loading on the lumbar spine, which triggers movement and lumbar spasms. He further stated that your lumbar spasms are greatly exacerbated by prolonged standing and that you are able to tolerate the pain caused by a 12-hour workday but are not able to tolerate the pain caused by a 16-hour workday. Based on the medical documentation you submitted from your treating physician [] dated August 26, 2009 and October 20. 2009, and received in the EEO Office on October 26, 2009; and the notes of your interactive dialogue with [the EEO Manager] on September 14, 2009, your request for reasonable accommodation is approved. However, given your physical limitations, there is no reasonable accommodation available that would allow you to perform the essential functions of your CBP Officer (GS-1895-11) position at this time. For the reason stated above, CBP's only option to reasonably accommodate your disability is to reassign you to a vacant-funded position. Toward this end, a local job search will be conducted to identify vacant funded positions in the local commuting area. If no such position(s) are identified, you will be contacted by the Mission Support Office and asked whether you wish the job search to be extended to other geographical areas. An updated OF-612 will be required from you to review your qualifications for job placement. Therefore, please submit this document to [the] Supervisory Mission Support Specialist, Service Port of Blaine, Washington, as soon as possible but no later than two weeks of receipt of this letter. The Office of Human Resource Management (HQ) will review the OF-612 to assess your qualifications for positions identified by the job search and identify those for which you meet the minimum qualification requirements for reassignment. You will be notified of the result of the qualification determination, at which time, a vacant position, if available, will be offered to you in subsequent correspondence as an official job offer. You may request reconsideration of this decision by submitting a written request to me within ten (10) calendar days of receipt of this letter. Your request should include your reason(s) for seeking reconsideration and be submitted with any additional medical documentation supporting such a request. Additionally, you have the right to file an EEO complaint within 45 calendar days of the receipt of this letter. Requesting reconsideration, as outlined above, does not toll the time limits for initiating a complaint of discrimination and does not satisfy the requirements for bringing a claim under the EEO complaint process. (emphasis in original). On July 28, 2010, the Seattle Field Operations Director issued Complainant a letter, which states, in relevant part: In response to your August 11, 2009, request for reasonable accommodation, we are able to offer you the position of CBP Technician, GS-1802-7, at the Area Port of Blaine, Blaine Washington. . . . This position is a Change to Lower Grade with your pay based on your Highest Previous Rate. Pursuant to this job offer, it is understood that should you accept, you will forfeit any and all appeal rights that would normally be associated with your reassignment from the CBP Officer position, to include the CBPO enhanced Retirement coverage. This is because you requested a reasonable accommodation for your disability and you are accepting this position as an accommodation for that disability. You are free to decline this position. However, please be advised that by declining this position, no additional job offers will be made by CBP, as the agency will have met its obligation to provide an effective accommodation (i.e., one that would remove a workplace barrier, thereby providing you an opportunity to perform the essential functions of the position) under the Rehabilitation Act. Additionally, if you refuse to accept this accommodation, you may not be qualified to remain in your present position. The letter did not mention that Complainant could contact an EEO Counselor regarding the reassignment to the CBP Technician position. On January 25, 2012, Complainant contacted an EEO Counselor. On March 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (spondylolisthesis), and age (54) when: 1. She was denied reasonable accommodation by being required to work shifts more than 12 hours long; 2. On or around January 25, 2012, she was requested to provide updated medical documentation to support her medical limitations; 3. She was required to work at a work station which was inappropriate, given her disability; 4. She was assigned CBPO duties while assigned to the CBP Technician position; 5. On December 28, 2009, she was notified by the Agency that her request for reasonable accommodation was approved, but that due to her physical limitations there was no reasonable accommodation available that would allow her to perform the essential functions of her CBPO position; 6. The Agency failed to conduct a local job search after Complainant was informed that she was unfit for the CBPO position; 7. In July 2010, she was assigned to the position of CBP Technician; and 8. On an unspecified date, the Agency controverted her Workers' Compensation claim. The Agency accepted claims 1 through 4 for investigation. The Agency dismissed claims 5, 6, and 7 pursuant to 29 C.F.R. § 1614.107(a)(2) for failure to contact an EEO Counselor within 45 days of the alleged discrimination. The Agency dismissed claim 8 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as a collateral attack on the proceedings of another administrative forum. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On September 25, 2012, Complainant filed a motion to reinstate dismissed claims 5 through 7. On November 16, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (spondylolisthesis) and reprisal for prior protected EEO activity when, from July 21, 2012, to November 16, 2012, she was required to work overtime. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing, and on April 10, 2013, Complainant filed a motion to consolidate both of her complaints. On December 10, 2013, the AJ consolidated Complainant's complaints and denied Complainant's motion to reinstate claims 5 through 7. On January 7, 2014, Complainant withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged in the claims accepted for investigation and that claims 5 through 8 were properly dismissed on procedural grounds. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency improperly dismissed claims 5 through 7 for untimely EEO Counselor contact. Complainant maintains that the Agency mislead and/or misinformed her regarding the EEO process. Complainant contends that the December 28, 2009, letter misled her because it "falsely" asserted that her reasonable accommodation request had been granted and did not place her on notice that reassignment could reduce her grade. According to Complainant, the July 28, 2010, letter "was a direct message to [Complainant] by the local head of the Agency that there could be no appeal anywhere," including through the EEO process. Complainant contends that she did not become aware of the timelines associated with the EEO process until January 25, 2012, when she was asked to work more than 12 hours during one shift and read information about the reasonable accommodation process. According to Complainant, "the Agency misled her throughout the process regarding her right to file an EEO complaint, first by mis-describing a denial of an accommodation as a granting of the accommodation and failing to give notice of a possible downgrade, then by issuing a decision on her accommodation which forced her into a downgrade while asserting that she had no appeal rights. Under these circumstances, the Agency cannot be permitted to dismiss these allegations under the guise of an untimely filing." Complainant requests that the Agency's dismissal of claims 5 through 7 be reversed. In response to Complainant's appeal, the Agency contends that claims 5 through 7 were properly dismissed for untimely EEO Counselor contact. According to the Agency, the AJ properly determined that claims 5 through 7 constituted discrete events and not an ongoing failure to accommodate Complainant by the Agency. The Agency also contends that Complainant's contention that the Agency caused her EEO Counselor contact to be untimely is baseless. The Agency argues that Complainant understood the December 28, 2009, letter and that her July 2010 reassignment was voluntary. The Agency requests that the AJ's Order Denying Reinstatement should be affirmed. ANALYSIS AND FINDINGS As a preliminary matter, because Complainant explicitly raises only the dismissal of claims 5 through 7 on appeal, this decision will not address the Agency's final decision as it pertains to claims 1 through 4 and the dismissal of claim 8. Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The Commission notes that the duty to reasonably accommodate is ongoing. We find that Complainant's claim addresses an allegation of ongoing reasonable accommodation denial and should be construed as timely raised. See Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 0120130602 (Sept. 12, 2014) (agency improperly dismissed EEO complaint for untimely EEO Counselor contact when management continued to ignore complainant's requests for reasonable accommodation, which complainant asserted were still ongoing). The Commission has stated that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-IV (revised July 21, 2005). As such, at the time Complainant contacted the counselor, she was alleging that the agency remained unwilling to provide her with the accommodations she still needed. Accordingly, we reverse the dismissal of claims 5 through 7 and remand the matter to the Agency for an investigation. Letter Advising Complainant of Forfeiture of Appeal Rights Moreover, the Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the agency's action in misleading or misinforming the complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). Here, the Agency's July 28, 2010, letter advised Complainant that she was forfeiting any and all appeal rights. The Agency's letter appears misleading, so it was inappropriate for the Agency to deem Complainant's subsequent EEO Counselor contact untimely. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's claims for untimely EEO Counselor contact and REMAND the claims for investigation and processing in accordance with the below ORDER. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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 12-15-16 __________________ 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 01-2014-1665 2 0120141665