U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Albert S.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120152324 Agency No. HS-CBP-02707-2015 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 2, 2015, dismissing his 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. For the following reasons, the Commission MODIFIES the Agency's decision. ISSUE PRESENTED The issue presented is whether the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for raising claims that had previously decided by the Agency and 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 CBP Technician at the Agency's Del Rio Port of Entry facility in Del Rio, Texas. On January 15, 2015, Complainant initiated contact with an EEO Counselor.2 On April 28, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Mexican American) and disability (physical) when: 1. On May 23, 2007, management officials did not honor his light duty assignment request; 2. On July 20, 2007, he learned another employee received a light duty assignment while he remained without one; 3. On July 22, 2007, he was requested to provide another copy of his medical documentation regarding his light duty request; 4. Since 2010, he has not been permitted to work overtime in his reassigned position of CBP Technician; 5. In March 2010, upon returning to work, a Supervisory CBP Officer made inappropriate comments regarding his return to work; 6. In May 2010, he requested a disabled parking space but was denied a space; 7. In June 2010, he made additional inquiries about disabled parking spaces, but no spaces were added; 8. On November 4, 2010, he submitted medical documentation to management to request a disabled parking space, but his request was denied; 9. On May 17, 2011, he requested that the Port Director speak with employees about using disabled veterans' license plates and the use of disabled parking spaces at the Port, but no action was taken; 10. On December 4, 2011, and December 8, 2011, he was requested to provide additional medical documentation to justify his request for a designated parking space; 11. In March 2012, he was approved for an accommodation to park anywhere near the disabled parking space for a time period of 15 minutes prior to a shift change; however, this accommodation was not sufficient to meet his needs; 12. From August through October 2014, he requested a designated disabled parking space and provided additional medical information but was denied a space; and 13. On December 18, 2014, as a result of not receiving a disabled parking space, he injured himself on his way to work. The Agency dismissed claims 5 and 6 pursuant to 29 C.F.R. § 1614.107(a)(1) for raising the same issue as claims that had already been decided by the Agency in Complainant's previous 2010 EEO complaint. Using February 4, 2015, as Complainant's initial EEO Counselor contact date, the Agency dismissed claims 1 through 13 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. CONTENTIONS ON APPEAL On appeal, Complainant states that he contacted the EEO Office to initiate EEO counseling on January 15, 2015. Complainant contends that he most recently requested a designated handicapped parking space on August 18, 2014, September 3, 2014, and October 21, 2014. According to Complainant, on October 23, 2014, the Assistant Port Director denied his request. Complainant alleges that he is the only employee with a physical disability at the Port, so he should have a reserved handicapped spot. In response to Complainant's appeal, the Agency contends that its final decision properly dismissed claims 5 and 6 because they were the same as previously decided claims. The Agency also argues that claim 1 was previously decided by the Agency. The Agency maintains that all of Complainant's claims are time-barred because he did not contact an EEO Counselor until February 4, 2015. The Agency states that claim 13 fails to state a claim. According to the Agency, claim 4 constitutes an improper collateral attack on the workers' compensation process. The Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS The Agency dismissed claims 5 and 6 because they were identical to claims decided by the Agency in Complainant's 2010 EEO complaint. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission, and the record contains a copy of the Agency's final order adjudicating these claims. Accordingly, we AFFIRM the dismissal of claims 5 and 6 for stating the same claims that had previously been decided by the Agency. The Agency dismissed claims 1 through 13 for untimely EEO Counselor contact. 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)(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. §1614.105(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 his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. We AFFIRM the Agency's dismissal of claims 1 through 3 for untimely EEO Counselor contact.3 In claim 4, Complainant alleged that he has not been permitted to work overtime as a CBP Technician since 2010. In other words, Complainant is alleging that, since 2010, he continues to be denied overtime opportunities. We find that the Agency erred in finding this claim untimely and REVERSE the Agency's dismissal of claim 4 for untimely EEO Counselor contact. In claims 7 through 12, Complainant alleged that the Agency denied his request for a reserved handicapped parking space. According to Complainant, the Agency most recently denied his request on October 23, 2014. If Complainant were alleging that he was subjected to disparate treatment, Complainant's January 15, 2015, EEO Counselor contact date would render this claim untimely. However, we find that Complainant's request for a reserved handicapped parking space constituted a request for a reasonable accommodation, and the Commission notes that the duty to reasonably accommodate is ongoing. As such, at the time Complainant contacted the counselor, he was alleging that the Agency remained unwilling to provide him with the accommodations he still needed. Therefore, we REVERSE the Agency's dismissal of claims 7 through 12 and REMAND the matter, defined as a failure to accommodate claim, for further processing. In claim 13, Complainant alleged that he injured himself because of the Agency's failure to provide him with a reserved handicapped parking space. On appeal, the Agency argues that this fails 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 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, we find that claim 13 fails to state a claim on its own, and we AFFIRM the dismissal of this claim. However, we note that the fall alleged in claim 13 can serve as evidence of Complainant's damages suffered as a result of the Agency's failure to accommodate Complainant as alleged in claims 7 through 12. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of claims 1 through 3, 5, 6, and 13. We REVERSE the Agency's dismissal of claim 4 and claims 7 through 12 and REMAND the matter for further processing in accordance with this decision and the below ORDER. ORDER (E1016) The Agency is ordered to process the remanded claims (claim 4 and claims 7 through 12, defined as a failure to accommodate claim) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 8-15-2017 __________________ 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 In its final decision, the Agency used February 4, 2015, as Complainant's initial EEO Counselor contact date. However, the record reflects that Complainant called the EEO Office to initiate EEO counseling on January 15, 2015. According to the record, the date of Complainant's initial interview with the EEO Counselor was February 4, 2015. 3 We note that claims 1 through 3 concern the denial of Complainant's 2007 light duty requests. A request for light duty can be a request for reasonable accommodation, and the Agency's obligation to accommodate is ongoing. However, the record reflects that Complainant had a break in service between November 2008 and March 2010, so Complainant's 2007 denied light duty requests cannot be said to constitute a continuing violation. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2324 7 0120152324