Pearson v. Chao

          MEMORANDUM OPINION

          EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE.

         Plaintiff Clifford D. Pearson, a former federal employee, brings this action against Elaine L. Chao, Secretary of the United States Department of Transportation (“DOT” or “Defendant”). Mr. Pearson alleges, inter alia, violations of employment discrimination based on his color and race, pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 20003 et seq. (“Title VII”) and discrimination based on his disability pursuant to the Rehabilitation Act of 1973, 29 U.S.C § 790 et. seq. (“Rehabilitation Act”). Am. Compl., ECF No. 8. Pending before the Court is defendant's renewed motion to dismiss Mr. Pearson's amended complaint. Upon careful consideration of defendant's renewed motion to dismiss, plaintiff's opposition, the defendant's reply thereto, and for the reasons discussed below, defendant's renewed motion to dismiss is GRANTED.

         I. Background

         Mr. Clifford Pearson is an African-American man who was formerly employed with DOT. He has several grievances with DOT that relate to DOT's alleged failure to provide reasonable accommodations for him when he was temporarily disabled and DOT's alleged discrimination against him because of his race.

         The first grievance relates to DOT's alleged discriminatory treatment based on Mr. Pearson's disability. While employed at DOT, Mr. Pearson suffered an injury to his spine that disabled him temporarily. Am. Compl., ECF No. 8 at 21. This injury led to a diagnosis of a cervical spine fracture, and Mr. Pearson was medically required to wear a cervical collar for an extended period of time. Id. From July 2014 to November 2014, he requested accommodations for his temporary disability in the form a “telework agreement, office work station modification, and mix use of telework hours and sick leave.” Id. at 2, 11. He provided a doctor's note on September 25, 2014, with a diagnosis and a recommendation that Mr. Pearson be allowed to work the maximum number of teleworking days the agency allows weekly for a total of 12 weeks. Id. at 24-25. DOT authorized Mr. Pearson's request for reasonable accommodations on October 10, 2014. Id. at 32. After authorizing the accommodations, DOT required Mr. Pearson to check in monthly to determine his medical status. Id. at 33-34.

         The second grievance relates to DOT's alleged discriminatory treatment based on DOT's failure to promote Mr. Pearson. Mr. Pearson applied for an open position of Realty Specialist and, in early March, the application tracking system indicated that his application met the vacancy requirements and had been referred to a manager. Id. at 40. Around that same time, Mr. Pearson sent an anonymous letter to EEOC complaining about discrimination in DOT's hiring practices. Id. at 43.

         Mr. Pearson was interviewed for the Realty Specialist position, but on July 21, 2016, he received an email informing him that another candidate was selected.^[1] Id. at 42. Mr. Pearson learned that a Caucasian woman was chosen instead. Id. When he asked for advice on ways to be more competitive for any future comparable positions, he was told “you are not politically connected” and “you're taking advice from the wrong people.” Id. Mr. Pearson alleges he was denied the promotion because of his race, and in retaliation for the anonymous complaint that he filed. Id. at 42-43. He also alleges that he was denied the position because of his prior requests for leave and telework accommodations, and because he refused to disclose his medical information during telework check-ins. Id. at 3.

         Mr. Pearson's last grievance relates a performance review he received on July 14, 2016, that stated he “Achieved Results.” Id. at 12. This rating meant that he “achieved the results listed in [his] performance plan” Id. Mr. Pearson argues that this performance review “evidenced his ability to perform his duties and qualifications to be promoted from within the Agency.” Id. at12.^[2]

         On October 25, 2016, Mr. Pearson made an initial contact with an Equal Employment and Opportunity (“EEO”) counselor to discuss what he believed were discriminatory actions by DOT which he alleged began in September 2014 and continued until October 20, 2016. Am. Compl., Ex. A, ECF No. 9 at 5. He filed a formal complaint on December 30, 2016, alleging that he was discriminated by DOT because of his disability when DOT failed to provide a reasonable accommodation during the months of September to November 2014, and when DOT failed to promote him because of his color and race. Am. Compl., ECF No. 8 at 3. Generally, Mr. Pearson alleged that all African-American employees in his office were not considered for promotion beyond a certain paygrade, while Caucasian employees were considered for promotion. See Id. at 10.

         On February 28, 2017, the Departmental Office of Civil Rights (“DOCR”) notified Mr. Pearson of its final decision to dismiss his complaint in its entirety. Am. Compl., Ex. B, ECF No. 9-1 at 5. DOCR first explained that EEOC regulations required Mr. Pearson to make first contact with an EEO counselor within 45 days of the alleged discriminatory actions. Id. DOCR reasoned that his first claim based on a request for a reasonable accommodation occurred from “September 2014 to November 2014, ” over two years before he contacted an EEO counselor. Id. His second claim, related to a July 3, 2015^[3] leave request, occurred over a year before he contacted the EEO counselor. Id. His third claim, that he was discriminated against because of his race when he was notified that he did not get a promotion on April 19, 2016, occurred over six months before he made contact.^[4] Id. Finally, his fourth claim, that on July 14, 2016, he received a performance appraisal rating of “Achieved Results, ” occurred over two months before he contacted the EEO counselor. Id. Because all of the alleged discriminatory acts occurred outside the 45-day window, Mr. Pearson's complaint was dismissed based on untimely contact with the EEO counselor. Id. (citing 29 C.F.R. § 1614.107(a)(1)). DOCR informed Mr. Pearson that he could appeal the decision to the Office of Federal Operations (“OFO”) or file a civil action in a U.S. District Court. Id.

         Mr. Pearson notified DOCR of his intent to appeal the final decision to the OFO but failed to file a supporting brief. Am. Compl., Ex. B, ECF No. 9-1 at 8-10. Defendant filed a brief in opposition, arguing the claims were properly dismissed by the agency because Mr. Pearson failed to timely initiate contact with the EEOC. See generally Am. Compl., Ex. D, ECF No. 9-2.

         OFO reversed the final agency action dismissing the complaint. Am. Compl., Ex. E, ECF No. 9-3. OFO reasoned that although all of the specific examples of racial and disability discrimination cited by DOT in its dismissal occurred well before the 45-day limit, Mr. Pearson “alleged discriminatory events from 2014 through his departure from Agency employment on October 30, 2016.” Id. at 8. OFO explained that because the incidents that make up a hostile 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. Id. at 9. OFO ruled that “various incidents comprising Mr. Pearson's hostile work environment claim occurred within the 45-day period preceding [Mr. Pearson's] EEO counselor contact.” Id. Specifically, OFO explained that Mr. Pearson noted that although DOT had an official policy of not granting same-day requests for leave/telework, another employee regularly requested such leave. Id. OFO referenced an October 20, 2016 email in which an employee expressed her intention to telework and take leave on that same day. Id. at 8.

         As to the disability claim, OFO stated that Mr. Pearson's complaint could be construed as a denial of a reasonable accommodation, or as an agency action that caused him to cease receiving a reasonable accommodation earlier than contemplated. Id. at 9. OFO explained that “because an employer has an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it.” Id. (citation omitted). OFO remanded the matter to DOT for further processing and investigation in accordance with OFO's order. Id. at 9-10. OFO also informed Mr. Pearson of his right to file a civil action on the underlying complaint. Id. at 10. If a civil action is filed, the administrative proceedings would be terminated. Id. (citing 29 C.F.R. § 1614.409).

         Rather than take his chances with DOT, Mr. Pearson filed a complaint in this Court. Mr. Pearson failed to respond to defendant's first motion to dismiss but subsequently filed an amended complaint alleging several new claims. Am. Compl., ECF No. 8. Defendant has filed a renewed motion to dismiss which is now ripe for adjudication. Def.'s Mot. to Dismiss, ECF No. 15.

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