EEOC Appeal 2020001692

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dewitt L,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 2020001692
Agency No. EU-FY19-302
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 25, 2019, 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 a Teacher at the
Agency’s Kaiserlautern High School facility in DoDEA-Europe.
On August 20, 2019, Complainant filed a formal complaint alleging discrimination on the basis of
disability and unlawful retaliation for engaging in prior protected EEO (requesting a reasonable
accommodation and contacting the EEO office). Complainant asserts on appeal that the Agency
mischaracterized some of the claims in his complaint. As an initial matter, we find that a fair
reading of the complaint, in conjunction with the related EEO counseling report, shows that he
raised the following issues:
1. 	The Agency failed either to respond to or provide him with requested disability-related
reasonable accommodations.
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.

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2. 	He was subjected to harassment/a hostile work environment as evidenced by the following:
a. 	on January 4, 2019, the principal refused to move a Special Education teacher from
Complainant’s class although she did not show up as required for weeks and
undermined Complainant and Complainant was improperly blamed;
b. 	from January 4, 2019 until the end of the school year on June 14, 2019,
Complainant was not allowed to teach periods 4 and 7;
c. 	on May 2, 2019 the Special Education teacher refused to follow Complainant’s
instructions, despite being told that she needed to follow him;
d. 	on May 6, 2019, management did not reassign another person to replace the Special
Education teacher; and
e. 	the Agency failed to provide him with requested accommodations for his disability
through the end of the school year.
In a November 25, 2019 decision, the Agency dismissing the complaint for untimely EEO
counselor contact and failure to state a claim.
The instant appeal followed. On appeal, Complainant argues that the Agency’s dismissal should
be reversed because the Agency did not address all his claims; the Agency improperly
characterized claims as spin-off complaints and that the complaint states viable claims; and the
reasonable accommodation claims are timely, as he struggled to deal with the Agency’s
misinformation.
ANALYSIS AND FINDINGS
The Agency dismissed Complainant’s allegations of harassment and the denial of reasonable
accommodation 	for 	untimely 	EEO 	Counselor 	contact. 	EEOC 	Regulation 	29 	C.F.R. 	§
1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the
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.
In the instant matter, Complainant submitted a request for reasonable accommodations in March
2019 and, on April 22, 2019, the Agency management issued a memo granting some of his
requested reasonable accommodations, but not all of them. Complainant alleges that he continued
to seek additional accommodations for his disability throughout the remainder of the school year,
which ended on June 14, 2019. EEOC’s Compliance Manual, Section 2, “Threshold Issues”, p. 2-
73, 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.” Therefore, Complainant has, in effect,
alleged he was denied needed reasonable accommodations through the end of the school year (June
14, 2019).

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Complainant initiated contact with an EEO Counselor regarding the instant complaint on July 19,
2019,2 within the 45-day limitation period. As such, we conclude the Agency erred in dismissing
Complainant’s denial of reasonable accommodation claim as untimely raised.
The Agency also dismissed Complainant’s harassment claim as untimely raised with the EEO
counselor. 	The Commission has held that “[b]ecause the incidents that make up a hostile work
environment claim “collectively constitute one unlawful employment practice,' the entire claim is
actionable, as long as at least one incident that is part of the claim occurred within the filing period.
This includes incidents that occurred outside of the filing period that the [Complainant] knew or
should have known were actionable at the time of their occurrence.” EEOC Compliance Manual,
Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101, 117 (2002)). 	Here, applying this reasoning, we find that because
Complainant's harassment claim consists, in part, of the timely raised ongoing denial of reasonable
accommodation, his entire harassment claim should be considered timely raised.
We also disagree with the Agency that Complainant has failed to state a viable claim of
harassment. His allegations, including the failure to accommodate, when considered together in
the light most favorable to Complainant, properly assert an injury to a term, condition, or privilege
of employment for which there is a remedy. Therefore, Complainant’s allegations of harassment
state a claim and the Agency’s dismissal of this claim on this basis was not proper.
Finally, Complainant has raised a number of complaints about his EEO counseling and the
processing of the instant complaint. While these allegations are properly dismissed as independent
claims of discrimination or retaliation, the Agency still has a duty to address Complainant's
concerns. EEOC MD-110, Ch. 5 § IV.D provides, in pertinent part, the following: “[t]he Agency
official responsible for the quality of complaints processing must add a record of the complainant's
concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained
on the underlying complaint. If no action was taken, the file must contain an explanation of the
Agency's reason(s) for not taking any action.” 	Therefore, since we are remanding the instant
complaint for further processing on the reasonable accommodation and harassment issues, the
Agency should also provide Complainant with a report of any actions it took to resolve his
concerns regarding the processing of his complaint, or an explanation of its reasons for not taking
any action,
2 Although Complainant contacted DMEO Chief regarding his EEO rights on April 1, 2019, a May
7, 2019 email from Complainant to EEO Counselor expressly indicates that, with respect to that
contact, his intention was to receive information on filing an EEO complaint, not to file a
complaint.

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CONCLUSION
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 (E0618)
The Agency is ordered to process the remanded claims of denial of reasonable accommodation
and ongoing harassment/hostile work environment in accordance with 29 C.F.R. § 1614.108 et
seq. 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.

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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.
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.
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).

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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
June 24, 2020
Date