U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don S,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120160875 Agency No. 13-00264-02270 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 7, 2013, dismissing his complaint of unlawful 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 At the time of events giving rise to this complaint, Complainant worked as an Industrial Equipment Mechanic at the Agency's Utilities Shop, Installation Facilities and Environment Division facility in Marine Corps Base Quantico, Virginia. On June 5, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (left knee injury and right elbow injury) when on March 4, 2013, he received a denial of his reasonable accommodation request. On December 7, 2013, the Agency issued a final decision dismissing the complaint for failure to state a claim per 29 C.F.R. § 1614.107(a)(1), and for mootness in accordance with 29 C.F.R. § 1614.107(a)(5). The instant appeal followed. ANALYSIS AND FINDINGS Upon review, we find that Complainant's complaint was improperly dismissed under 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, as well as for mootness under 29 C.F.R. § 1614.107(a)(5). Complainant meets the definition of aggrieved employee in that he has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). He has clearly alleged that the Agency violated the Rehabilitation Act by failing to reasonably accommodate his disability. The record shows that in October 2012 and February 2013, Complainant submitted reasonable accommodation requests asking to be reassigned to a position that did not require physical exertion. On March 4, 2013, Complainant was issued a response by management indicating his accommodation request was premature because he was engaged with the Office of Worker's Compensation Programs (OWCP) in processing his worker's compensation claim. The Agency indicated that once the OWCP process was completed, if Complainant needed further accommodation, the reasonable accommodation process would be re-engaged. A complainant cannot use the EEO complaint process to lodge a collateral attack on another proceeding such as OCWP. See Wills v. Dep't of Def., EEOC Request No. 05970596 (Jul. 30, 1998). However, we have held that dismissal due to a pending OWCP claim is erroneous. "The fact that complainant may have a pending claim within the Worker's Compensation program has no bearing on whether she has a stated an EEO claim." Granger v. U.S. Postal Svc., EEOC Appeal No. 01A54495 (Sep. 19, 2005). Here, the fact remains that the Agency denied Complainant's accommodation request in its March 4, 2013 response. Whether or not that response violated the Rehabilitation Act cannot be determined without an investigation and further processing of the claim. The Agency also dismissed the complaint for mootness, pursuant to 29 C.F.R. § 1614.107(a)(5), because it found it provided Complainant with a light duty position pending the outcome of the OWCP process. However, a fair reading of the record2 in this case reflects that Complainant is alleging that although the Agency issued him a Light Duty letter and placed him in a temporary position, it denied his request for "reassignment to a different position that doesn't require physical exertion."3 To the extent that the Agency provided Complainant a work assignment that Complainant alleges still violated his medical restrictions, Complainant has raised an actionable claim of denial of reasonable accommodation in violation of the Rehabilitation Act. Accordingly, the Agency's final decision 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 (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to 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 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 Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 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 December 22, 2016 __________________ 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 We note that the Agency's record is lacking critical documents including but not limited to Complainant's formal claim, his official requests for reasonable accommodation, the Agency's light duty letter and the memorandum from his supervisor apparently stating that the request for accommodation was denied because it was premature. 3 See EEO Counselor Report, dated 13 June 2013, at Page 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160875 2 0120160875