EEOC Reverses @StateDept Dismissal of Reasonable Accommodation Complaint Over Housing Assignment

 

 

Via EEOC Appeal No. 2021001832:
At the time of events giving rise to this complaint, Complainant was employed as a Criminal Investigator, GS-1811-13, with the Department of Justice – Drug Enforcement Agency (DEA), Caribbean Division – Curaçao, Netherlands Antilles Country Office, and stationed at the Department of State’s (hereinafter Agency or State) U.S. Consulate – Curaçao. On January 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint against State alleging he was discriminated against based on his disability (asthma and association with his minor son with asthma who was part of his household) and reprisal for prior protected EEO activity under the Rehabilitation Act (requesting reasonable accommodation) when:
1. he was denied reasonable accommodation regarding his housing assignment in Curaçao; and
2. his assignment to US Consulate Curaçao was terminated on September 13, 2019.
State conducted an EEO investigation and then issued a FAD dismissing the complaint for failure to state a claim because Complainant was not a State employee, it had no decisionmaking authority on him, and it took no action “independent” of the DEA, Complainant’s employing agency. On appeal, Complainant submits a State regulation which indicates the Chief of Mission (Ambassador or Consul General) has full responsibility for the direction, coordination, and supervision of all U.S. executive branch employees in their country, with exceptions that do not apply here. We note that in his investigatory statement, the Consul General at Curaçao stated he was responsible for overseeing the activities of the DEA at his post, including Complainant, and that DEA asked if he would concur with curtailment (terminating the tour), which he did.
Additional details:

Complainant repeatedly articulated his view that State discriminated against him. See e.g., EEO complaint, at Bates No. 4; Affidavit A, at Bates Nos. 59, 60, 71; Rebuttal letter by Complainant’s former counsel writing Complainant “rebuts… that [the Consul General’s] actions to curtail… his assignment at… Curacao was at the request of DEA” at Bates No. 200; Complainant’s appeal statement that, “State was unilaterally responsible for the denial of a request for reasonable accommodation with respect to complainant’s housing assignment on September 13, 2019 (claim #1) and complainant’s assignment to… Curacao was broken on September 13, 2019 (claim #2)…. At no point in time did any individual from [DEA] request to break the… assignment at… Curacao or deny [my] request for a reasonable accommodation.”

Under a plain reading of 29 C.F.R. § 1614.106(a) – and this Commission’s own case law – Complainant’s belief alone is enough to enable him to file a discrimination claim with State. See e.g., Pion v. OPM, EEOC Request No. 05880891 (Oct. 18, 1988) (pointing out that the forerunner to current 29 C.F.R. § 1614.106(a) had once been amended precisely to guarantee the right of complainants “to bring a complaint against any agency they believed engaged in discriminatory conduct”); Warren v. OPM, EEOC Request No. 05950295 (Aug. 17, 1995) (ruling that “[i]n the present case, although [complainant] is clearly an employee of the Department of Agriculture, the Commission finds that the complaint was properly made against [OPM], the agency which allegedly discriminated against [him]”); Koch v. OPM, EEOC Appeal No. 01A13849 (Dec. 21, 2001) applying all the above cited cases. Thus, on these particular facts, State had no right to reject complainant’s complaint on the grounds that it was filed with the wrong agency.
[…]
The Agency is ordered to process the remanded claims, as redefined herein, from the point processing ceased. This means the Agency shall, within 10 days from the date of this decision, shall again notify Complainant that he has the option to request a hearing before an EEOC Administrative Judge (AJ) or an immediate FAD within 30 days of receipt of the notice in accordance with 29 C.F.R. § 1614.108(e). 2 If Complainant requests a FAD without a hearing, the Agency shall issue a final decision on the merits of the claim within sixty (60) days of receipt of his request.
[…]
Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

Full decision is available to read here (PDF).

Click to access 2021001832.pdf

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