U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency. Appeal No. 0120160803 Hearing No. 410-2014-00352X Agency No. HUD000912013 DECISION On January 4, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Introduction At the time of events giving rise to this complaint, Complainant worked as a Public Housing Revitalization Specialist, GS-14, in the Agency's Atlanta Regional Office in Georgia. Complainant teleworked three times per week. On July 27, 2012, Complainant asked to telework two additional days per week to attend an approximately 15-week trauma recovery program through the Department of Veterans Affairs. If not feasible, Complainant asked for a temporary reassignment. On July 31, 2012, management informed Complainant that it was cancelling her previously approved three days per week telework and that she needed to report to the office. On September 5, 2012, management denied Complainant's request for five days of telework, and offered to relocate Complainant's work space and provide her flexibility in attending medical appointments. On September 18, 2012, Complainant requested reconsideration of the Agency's denial. In a memorandum, dated November 15, 2012, management sustained the September 5 offer. On March 28, 2013, management approved three days of telework with flexibility to use leave for medical appointments and two days per week in a private office space on another floor in the Agency building. On May 23, 2013, Complainant initiated EEO counseling alleging that the Agency discriminated against her based on disability (Post Traumatic Stress Disorder/PTSD, Anxiety Panic Disorder, and Major Depression)2 when: 1. on July 27, 2012, it denied her reasonable accommodation by cancelling her three days per week of telework after she requested an additional two days per week of telework (for a total of five days per week), 2. it subjected her to hostile work environment harassment due to her request, 3. it changed her working conditions and failed to provide her training on her new assignments, and 4. it improperly released her confidential medical information during the reasonable accommodation process. On July 25, 2013, Complainant filed an EEO complaint reiterating the above allegations. In a letter dated September 11, 2013, the Agency accepted claim (1) only. The Agency informed Complainant that she had five calendar days to file an opposition to the acceptance decision, or the Agency would investigate the claim as articulated in its acceptance letter. The Agency investigated claim (1). Investigation The investigative record contains the following pertinent documents: 1. Denial of Reasonable Accommodation Request form, dated September 5, 2012. The denial provided information on requesting reconsideration through Agency management and filing an EEO complaint,3 union grievance, or mixed case appeal. 2. An email, dated December 27, 2012, from a Human Resources Specialist (HR1) to Complainant, stating that her request remained under review and her medical information was sent to Federal Occupational Health (FOH). HR1 stated that she would keep Complainant abreast of her request status. 3. An FOH letter, dated January 31, 2013, stating that reasonable accommodation options may be a change in supervisory methods, temporary reassignment under a different supervisor, or telework. The FOH physician cited a dysfunctional relationship between Complainant and her supervisor as an exacerbator of Complainant's symptoms. The physician stated that change of supervisory methods may not be a feasible accommodation due to the extent of the dysfunction. 4. In a chain of emails, dated March 28, 2013, another Human Resources Representative (HR2) offered a new office space, three days of telework per week, and a modified work schedule to attend medical appointments with at least 24 hours of advanced notice. HR2 stated that Complainant's accommodation request of five days of telework "has not been disapproved." 5. Accommodation Request Progress Notes for July 27, 2012 to May 13, 2013. - April 2, 2013 note states "Division Director asked the [Disability Program Manager] why was additional medical information requested, the initial medical had enough information to render a decision." - May 13, 2013 note states "Request is completed - Employee received notification from management." 6. An Agency Reasonable Accommodation Information Reporting Form, undated and signed by HR1, indicating Complainant requested accommodation on July 27, 2012, it was approved or denied April 25, 2013, and it was provided on April 25, 2013. 7. Memorandum, dated April 25, 2013, to Complainant approving her request for five telework days per week and flexible/modified work schedule through completion of her medical program. Post-Investigation Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. On May 27, 2015, the assigned AJ issued an Order Granting Agency's Motion to Dismiss.4 The AJ dismissed claim (1) pursuant to 29 C.F.R. §§ 1614.105 & 1614.107(a)(2), for untimely EEO contact. The AJ offered the following: on July 27, 2012, the Agency cancelled Complainant's three days per week telework; from December 20, 2012 to April 25, 2013, the Agency granted Complainant's request in full as a temporary accommodation; and on April 25, 2013, the Agency granted Complainant's request officially. The AJ stated, "[Complainant] waited until five months after the time that the original dispute was resolved in her favor before she initiated counseling." The AJ rejected Complainant's contention about the continuing nature of a failure to accommodate, stating "[Complainant] telecommuted five days for five months before she initiated EEO counseling." The AJ stated that the time limit for initiating EEO contact fell well before May 23, 2013. The Agency did not issue a final decision. On September 30, 2015, the AJ issued an Order of Final Judgment. The instant appeal from Complainant followed. On appeal, Complainant states that the AJ erred in articulating the facts of the instant case. Complainant proffered the following: on September 5, 2012, the Agency denied her request for accommodation; between October 2012 and December 2012, the Agency reconsidered her accommodation request; and, between December 2012 and April 2013, the Agency reconsidered her request with further medical review. Complainant noted, in November 2012, the Agency granted a partial alternative accommodation, to which she requested reconsideration. Complainant stated, "The record is devoid of any evidence that Complainant was granted an accommodation that included telework after July 31, 2012, and before April 25, 2013." Further, Complainant stated that the Agency failed to show she had knowledge of timeliness requirements for an ongoing denial of accommodation. Also, Complainant stated that the Agency initially accepted and investigated her claim, and did not raise timeliness as an issue until the hearing stage. Complainant added that the Agency did not "close" its Progress Notes on her request for reasonable accommodation until May 13, 2013, and soon after she realized the Agency's actions since July 2012 were a violation of her EEO rights. Complainant stated that her claim involves denial of her request to telework five days per week while seeking medical treatment and cancellation of her prior three days per week telework schedule. Complainant noted that it was typical for Public Housing staff to telework three days per week. Complainant expressed concerns about whether the Agency followed its own Reasonable Accommodation Policy. ANALYSIS AND FINDINGS The Agency did not issue a final decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), because the Agency did not issue a final decision within forty days of receipt of the AJ decision, the AJ's decision is the final action of the Agency. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an Equal Employment Opportunity Counselor within-forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, Complainant stated that she teleworked three days per week as did other Public Housing staff and, on July 27, 2012, she asked to telework two additional days per week to facilitate her attending an approximately four-month trauma recovery program. On September 5, 2012, the Agency denied Complainant's request for five days of telework and offered an alternative accommodation. On September 18, 2012, Complainant requested reconsideration of the Agency's denial. On November 15, 2012, the Agency sustained its September denial of five days of telework. Complainant requested reconsideration again and submitted additional medical documentation. The record shows that Complainant and the Agency continued to interact about her request for five days of telework. On April 25, 2013, the Agency approved Complainant's request for five days of telework during her medical program. We find, based on the circumstances herein, this claim must be characterized as a recurring violation. The record indicates that Complainant is alleging that she continued to need the requested accommodation after the Agency denied her specific request in September 2012 and November 2012, and while it continued to reconsider her request through to April 25, 2013. Complainant stated, "The record is devoid of any evidence that [she] was granted an accommodation that included telework after July 31, 2012, and before April 25, 2013." The EEOC Compliance Manual, Section 2: "Threshold Issues", 2-IV-C.1.a, EEOC Notice 915.003 (July 21, 2005), provides 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." Further, the Commission has specifically held that the denial of reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. See Harman v. Office of Personnel Management, EEOC Request No. 05980365 (November 4, 1999). Therefore, viewed as a recurring violation, the Commission finds that Complainant's EEO counselor contact is timely as to her reasonable accommodation claim (Claim 1), and that the matter was improperly dismissed. CONCLUSION The Agency's final action dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of this decision and the complaint file to the EEOC Hearings Unit of the Atlanta District Office within thirty (30) 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 hold a hearing and issue a decision on the complaint 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 (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 (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 April 5, 2018 __________________ 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 Complainant developed PTSD during prior military service. Complainant stated, until the instant need for accommodation, she did not have issues with her medical conditions and it was not necessary to declare her disability during her employment with the Agency. 3 We note that the denial does not provide the timeframe for proceeding in the EEO or grievance process, but does provide the timeframe required for filing a mixed case appeal. 4 We note, on March 19, 2015, Complainant filed a Response in Opposition to Agency's Motion to Dismiss. On April 1, 2015, Complainant filed a Sur-Reply to an Agency Reply to her opposition. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160803 7 0120160803