@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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