0120170780
05-17-2018
Denese G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Denese G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120170780
Hearing No. 570201000496X
Agency No. 6A000000110
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's November 3, 2016 Final Order concerning her equal employment opportunity ("EEO") complaint alleging 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 was employed by the Agency as a Government Relations Representative (EAS-23) at its Headquarters in Washington, DC.
On November 14, 2009, Complainant filed a formal complaint alleging discrimination by the Agency on the basis of disability (Fibromyalgia, Herniated Disc, and surgery) when:
1. From May 2009 through August 14, 2009, she was denied a reasonable accommodation,
2. Her request to return to work effective May 27, 2009, was denied,
3. From May 2009 through August 14, 2009, she was forced to use Leave Without Official Pay/Family & Medical Leave to cover her absence, and
4. She was forced to resign effective August 14, 2009, because of the Agency's delay in processing her request for a reasonable accommodation.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing.
On September 27, 2012, the AJ assigned to Complainant's case dismissed her hearing request, finding the matter fell within the authority of the Merit Systems Protection Board ("MSPB"). The AJ ordered the Agency to issue a "mixed case" Final Agency Decision ("FAD") which would allow Complainant to appeal her case to the MSPB, yet still have the option to reinstate her EEO Complaint if the MSPB did not assert jurisdiction. The Agency issued the FAD, Complainant appealed to the MSPB, and the MSPB dismissed Complainant's complaint for lack of jurisdiction.2 Ultimately, the matter was reinstated as the instant EEO complaint.3
On March 2, 2016, the same AJ previously assigned to Complainant's case issued a Scheduling Order to the parties. At the AJ's request, the parties resubmitted the Agency's July 20, 2010 "Motion for a Decision Without a Hearing," Complainant's August 19, 2010 response brief opposing the Agency's Motion, and the Agency's January 13, 2012 reply brief. On September 13, 2016, the Agency filed a "Supplement to Motion for Decision Without a Hearing." As with the Agency's prior submissions, it requested that the AJ either procedurally dismiss Complainant's complaint for untimely contact with an EEO Counselor pursuant to 29 C.F.R. �1614.107(a)(2) or issue summary judgment in the Agency's favor. Based on these documents, the AJ dismissed Complainant's complaint as untimely on September 26, 2016.
The Agency issued its Final Order adopting the AJ's dismissal of Complainant's complaint as untimely. The instant appeal followed.
ANALYSIS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("EEO MD-110"), at Chap. 9, � VI.B. (as revised, August 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
For the instant case, the AJ determined no issue of material fact existed when he reached the legal conclusion that Complainant's complaint was untimely under 29 C.F.R. �1614.107(a)(2). Timeliness is a threshold requirement for an EEO complaint. Therefore, the matter before us is whether the AJ's procedural dismissal was proper based on EEOC regulations.
In relevant part, 29 C.F.R. �1614.107(a)(2) provides that a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105 shall be dismissed. Under 29 C.F.R. � 1614.105(a)(1), complaints of discrimination must be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. These regulations are subject to extension in accordance with 29 C.F.R. �1614.604(c), which provides that the limitation period is subject to waiver, estoppel, and equitable tolling.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). We find the Agency met its burden. The record contains a copy of Complainant's letter of resignation dated August 5, 2009, and personnel documentation confirming that her request was processed on August 11, 2009. Complainant's Formal Complaint states that the effective date of her resignation was August 14, 2009.
Therefore, the last possible day for an alleged discriminatory act to occur was Complainant's final day of employment, August 14, 2009. Complainant initially contacted an EEO Counselor 49 days later October 2, 2009. We note that the AJ properly found Complainant's argument that she timely contacted an EEO Counselor when she called an automated phone number and provided her contact information on an unspecified date insufficient to establish timely EEO Contact. Likewise, Complainant's contention that the limitation period was triggered September 3, 2009, because the EEO Counselor used that date in the report, and because Complainant received an email regarding the denial of accommodations, was also properly dismissed by the AJ in favor of the August 14, 2009 date. We find all four claims fall outside the 45-day limitation period.
Claim 1 alleges an improper denial of a request for an ongoing reasonable accommodation, and should be viewed as a "recurring violation." See Burris v. Dep't of the Navy, EEOC Appeal No. 01200645531 (Jan. 10, 2007). In other words, when 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. See "Threshold Issues," EEOC Compliance Manual, at 2-IV(C)(1)(a) (revised July 21, 2005); Akbar v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102856 (Dec. 11, 2012); Smith v. Dep't of the Navy, EEOC Appeal No., 0120121807 (July 13, 2012). Here, Complainant alleges she required a reasonable accommodation daily, so the most recent date of the alleged violation would have been Complainant's final day of employment, August 14, 2009.
For Claim 2, the alleged action, denial of Complainant's request to return to work occurred prior to May 27, 2009, which is well over 45 days prior to Complainant's initial EEO contact.
Claim 3 alleges Complainant was forced to use of Leave Without Official Pay/Family Medical Leave, to cover her absence, resulting in severe financial hardship. The last day possible Complainant could be absent from work was her last day of employment, August 14, 2009.
In Claim 4, the alleged discriminatory act, forced retirement, is a personnel action. As stated above, the 45-day limitation period is triggered by the date the action becomes effective. The record reflects that Complainant's effective retirement date was August 14, 2009.
As Claims 1, 2 and 3 are not personnel actions, the timeliness of EEO contact may alternately be calculated based on the date Complainant suspected discrimination occurred. The AJ determined that Complainant's allegation in her Formal Complaint that on or about August 17, 2009, the Agency informed her that her accommodation request would not be submitted to the Reasonable Accommodation Committee ("RAC") sufficient to give rise to reasonable suspicion. Given the nature of Complainant's other allegations, and simultaneous occurrence, we find reasonable suspicion of discrimination likely existed for Complainant before she retired on August 14, 2009. Regardless, Complainant has not shown that reasonable suspicion did not exist prior to the 45-day limitation period.
On appeal Complainant has not shown any reason or justification for extending the applicable time period. Therefore, Complainant's EEO Counselor contact on October 2, 2009 was untimely. The AJ correctly ruled that the EEO Counselor contact was untimely.
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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
May 17, 2018
__________________
Date
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.
2 The MSPB dismissed Complainant's appeal for lack of jurisdiction on January 23, 2013, and again on July 10, 2014, after a full MSPB Board review, conducted at Complainant's request.
3 EEOC Appeal No. 0120150003 (May 22, 2015) (finding Complainant's March 9, 2015 appeal to the Commission, stating that she had not heard from the Agency since she initiated reinstatement of her EEO complaint on August 10, 2014, to be premature, as the hearing had not yet been held, and ordering the Agency to submit the necessary documents to the proper EEO Hearings Unit for reinstatement.) The Hearings Unit received documentation of reinstatement of Complainant's EEO complaint from the Agency on or around June 3, 2015.
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