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Defendant's Attorney: Nolan Fields and Rachael Faye Zintgraff
Description: Tulsa, Oklahoma civil rights lawyers represented Plaintiff who sued Defendant on an Americans with Disabilities Act (ADA) violation theory.
In early 2018, Ms. Bond, a cartographer with the Army Corps, was diagnosed with post-traumatic stress disorder ("PTSD"). Beginning in March 2018, she submitted successive applications for unpaid leave under the Family Medical Leave Act ("FMLA"). With each application, Ms. Bond attached documentation from her counselor, Lisa Cragar, who explained that Ms. Bond's PTSD prevented her from returning to work. Ms. Bond's supervisor, Dan Hernandez, granted each application until Ms. Bond had used the 12 weeks permitted under the FMLA. He informed Ms. Bond that she would "be expected to return to work" after that period. Suppl. App., Vol. I at 189.
During May and June, Ms. Bond made oral requests to telework. Mr. Hernandez denied these requests. While absent from work, Ms. Bond applied for Social Security disability income and workers' compensation. The Social Security Administration ("SSA") eventually denied Ms. Bond's application, explaining that her condition was not severe enough to keep her from doing "simple, routine work." Id. at 201. In her submission to the Office of Workers' Compensation in the Department of Labor, Ms. Bond included Ms. Cragar's work capacity evaluation, which reported that Ms. Bond could work "0" hours a week and that "alternative work locations would not improve [Ms. Bond's] ability to perform work duties." Id. at 204.
On May 25, 2018, Ms. Bond's FMLA leave expired, but she did not return to work or respond to Mr. Hernandez's inquiries. In September, she wrote a letter to Mr. Hernandez stating that "based on my medical condition, symptoms, diagnosis, medications and prognosis, for me to return to the Cartographer Position at [the Army Corps] is not physically or psychologically possible, for the foreseeable future." Id. at 199-200. She requested workers' compensation and immediate disability retirement. She attached the letter from the SSA denying her request for disability benefits.
Mr. Hernandez, understanding the SSA determination to confirm that Ms. Bond could work, requested "a statement from your medical provider indicating your ability to return to work, the likely timeframe of doing so, the type of work you are capable of performing, and whether an accommodation may be appropriate." Id. at 206-07. He attached the Department of Labor reasonable accommodation form. Ms. Bond responded that she could not "return to any of my past work, or, my former career," but that she "could probably work something low stress, simple/routine/repetitive, local, with no commute" and suggested "stuffing envelopes from the safety of my own home." Id. at 209. She reiterated that "I am not able to fulfill th[e] responsibilities" of a cartographer. Id.
When Ms. Bond returned the reasonable accommodation form, she wrote, "I don't know what my options are" in the space provided to request an accommodation. Id. at 215. Ms. Cragar submitted a medical evaluation stating she could not "see or identify any accommodations that could be made to [Ms. Bond's] current job position that could allow her to complete the mental tasks needed for the job." Id. at 216.
In January 2019, the Army Corps sent Ms. Bond a Notice of Proposed Removal for excessive absence and absence without leave. Ms. Bond did not appeal the notice and confirmed that she was "unable to work." Id. at 224-25. Her removal from the Army Corps became effective on March 15, 2019. She was given mailed notice that her health benefits would expire in 31 days.
Months later, Ms. Bond contacted Duane Braxton, a human resources representative for the Army Corps, about her lapsed medical insurance. On October 25, 2019, Mr. Braxton sent an email to Ms. Bond explaining that her insurance had lapsed because she had not elected coverage after being removed from service. Ms. Bond responded to that email on November 7, 2019, and received no further response.
The Army Corps asserted failure to exhaust as an affirmative defense.
The Rehabilitation Act requires federal employers to "provide reasonable accommodations to disabled employees." Sanchez v. Vilsack, 695 F.3d 1174, 1177 (10th Cir. 2012); see 29 U.S.C. § 794. Title VII prohibits an employer from "discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Both the Rehabilitation Act and Title VII require a claimant to "comply with specific administrative complaint procedures in order to exhaust their administrative remedies" before bringing a discrimination claim in federal court. Hickey v. Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020) (quotations omitted); see also Green v. Brennan, 578 U.S. 547, 550 (2016). Federal employees must "initiate contact" with an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). Although the "regulatory exhaustion requirement is not a jurisdictional prerequisite," it is a "claims-processing rule that the employer may raise as an affirmative defense." Hickey, 969 F.3d at 1118. This defense is "subject to waiver, estoppel, and equitable tolling," see Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1183 (10th Cir. 2018), but a "court must enforce this exhaustion requirement if the employer properly raises it," Hickey, 969 F.3d at 1118.
Section 2302 of Title 5 prohibits the federal government from implementing personnel practices that discriminate against employees on the basis of protected statuses. 5 U.S.C. § 2302(b)(1). When a personnel action is sufficiently serious, like removal or demotion, and the employee alleges the action constituted discrimination prohibited by another federal statute, the employee's claim is considered a "mixed case." See Kloeckner v. Solis, 568 U.S. 41, 44 (2012). A federal employee with a mixed case has the choice to initiate a complaint either with (1) the agency's EEO office or (2) the Merit Systems Protection Board ("MSPB"). See 29 C.F.R. § 1614.302(b).
Because an employee may not pursue a mixed case in two forums, "[w]hichever is filed first shall be considered an election to proceed in that forum" and the employee must exhaust administrative remedies consistent with the forum's timeliness constraints. See Jones v. U.S. Dep't of Just., 111 F.Supp.3d 25, 31 (D.D.C. 2015) (quotations omitted); see also 29 C.F.R. §§ 1614.302(c)(1), 1614.105(a)(1).
Outcome: The district court found that Ms. Bond did not exhaust her administrative remedies because she failed to contact the EEOC within 45 days of a qualifying act of discrimination. We affirm the district court's grant of summary judgment for the Army Corps on this ground.