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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“Long COVID” as a Disability Under the Americans with Disabilities Act, Section 504, and Section 1557

 

 

Late last month, HHS/Office of Civil Rights and DOJ/Civil Rights Division Disability Rights Section released its guidance for “long COVID” or “long haulers”.

Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time.1 This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.” This condition is known as “long COVID.”2

The new guidance explains that long COVID can be a disability under the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Affordable Care Act, and explains how these laws may apply. Each of these federal laws protects people with disabilities from discrimination.

1. What is long COVID and what are its symptoms?

According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity.8 Examples of common symptoms of long COVID include:

Tiredness or fatigue

Difficulty thinking or concentrating (sometimes called “brain fog”)

Shortness of breath or difficulty breathing

Headache

Dizziness on standing

Fast-beating or pounding heart (known as heart palpitations)

Chest pain

Cough

Joint or muscle pain

Depression or anxiety

Fever

Loss of taste or smell


This list is not exhaustive. Some people also experience damage to multiple organs
including the heart, lungs, kidneys, skin, and brain.

2. Can long COVID be a disability under the ADA, Section 504, and Section 1557?

Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”).10 A person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. This guidance addresses the “actual disability” part of the disability definition. The definition also covers individuals with a “record of” a substantially limiting impairment or those “regarded as” having a physical impairment (whether substantially limiting or not). This document does not address the “record of” or “regarded as” parts of the disability definition, which may also be relevant to claims regarding long COVID.

a. Long COVID is a physical or mental impairment

A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.11 Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

Lung damage

Heart damage, including inflammation of the heart muscle

Kidney damage

Neurological damage

Damage to the circulatory system resulting in poor blood flow

Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.12

b. Long COVID can substantially limit one or more major life activities

“Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system,
cardiovascular system, neurological system, circulatory system, or the operation of an organ.
The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active. Long COVID can substantially limit a major life activity. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.

• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.

• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

Read more here.

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@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET
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Here is an EEO case with a reminder that 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 complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

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.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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EEOC Affirms Class Action Certification For Disabled Applicants to the U.S. Foreign Service

— Domani Spero
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In October 2010, we blogged that the Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department.  (see  EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants).

Related items:

Meyer, et al. v. Clinton (Department of State), EEOC Case No. 570-2008-00018X (September 30, 2010) (certifying class action based upon disability discrimination in State Department’s Foreign Service Officer hiring)

This past June, the EEOC affirmed the class certification for applicants to the Foreign Service denied or delayed in hiring because of their disabilities, based upon the “worldwide availability” policy.  (see Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 (June 6, 2014)).

The State Department Disability Class Action now has its own website here.  Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The State Department’s Office of Legal Advisor and Office of Civil Rights represented the department.

Below is an excerpt from the class action website:

The EEOC decision found that the Class Agent in the matter, Doering Meyer, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was initially rejected outright for State Department employment anywhere in the world because the Department’s Office of Medical Services perceived that her MS might cause her problems in “a tropical environment.” This was notwithstanding a Board Certified Neurologist’s report approving her to work overseas without limitation.
[…]
The Department challenged the judge’s initial certification decision because, among other reasons, Meyer eventually received a rare “waiver” of the worldwide availability requirement, with her attorney’s assistance, and obtained a Foreign Service post. She is now a tenured Foreign Service Officer, most recently in Croatia, and being posted to Lithuania. Meyer’s attorney argued to the EEOC that she was still delayed in her career growth by the initial denial in 2006, and missed several posting opportunities over the course of an extended period, losing substantial income and seniority. The EEOC agreed with Meyer – modifying the class definition slightly to include not only those denied Foreign Service Posts, but those “whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not ‘worldwide available’ due to their disability.”

Schwartz indicated that the case may ultimately have major implications not only for Foreign Service applicants, and not only in the State Department, but for all employees of the federal government abroad who have disabilities, records of disabilities, and perceived disabilities, and who must receive medical clearance through the Department’s Office of Medical Services. He noted that he has already filed other alleged class cases, also pending at the EEOC – one on behalf of applicants for limited term appointments (who need “post-specific” clearance, but are also denied individualized consideration), and another on behalf of employees associated with people with disabilities, who are denied the opportunity to be hired because of their family members who might need reasonable accommodations (or be perceived as disabled).

The Commission had also received an “Amicus Letter” from a consortium of more than 100 disability-related organizations urging the Commission to certify the class.

Read the full ruling at (pdf) Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 from June 6, 2014 where the State Department contends that since this complaint was filed, the Office of Medical Services has changed many of its procedures in assessing “worldwide availability.”It also suggested that “many of those individuals who were found not worldwide available in 2006 maybe currently worldwide available under new definitions and procedures.”

The Commission, however, says that it “is not finding that changes made to the Medical Clearance process subsequent to the filing of the instant complaint have remedied any alleged discriminatory policy.”  

The order states (pdf): “It is the decision of the Commission to certify the class comprised of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not “world-wide available” due to their disability.”

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