0120170835
04-06-2017
Judie D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judie D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170835
Agency No. 4C-450-0129-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 6, 2016, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Occupational Health Nurse at the Agency's Processing and Distribution Center facility in Cincinnati, Ohio.
The record indicated that Complainant had a prior EEO complaint pending (namely, Agency No. 4C-450-0105-15) which was filed on October 26, 2015. In her prior complaint, Complainant alleged that management subjected her to harassment based on her race, age, disability, and/or retaliation.2 By letter dated July 27, 2016, Complainant asked that the complaint be amended to include a new matter. Complainant indicated that, before June 17, 2015, management refused her reasonable accommodations. She also noted that management removed signs for hearing impaired people from the door and removed visual aids and personal items from her office. Management told the EEO Counselor that the items were removed from her desk in 2015 and that they were not aware of any alleged denial of reasonable accommodation. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint.
On November 16, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (White), sex (female), disability, age (61), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when, on June 17, 2015 and other dates prior, Complainant's supervisor did not accommodate her per her medical restrictions when she removed personal and visual items from her desk and office. Complainant stated that the personal and visual items were placed in a particular order to break up the visual space as recommended by her doctor to maintain functionality and reduce dizziness. She also stated that this was an ongoing pattern of harassment since 2015.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failure to raise the matter in a timely manner. The Agency noted that Complainant waited a year to raise the matter with the EEO Office. As such, the Agency found that Complainant's contact was well over the 45 day time limit without explanation for the delay in contacting the Agency.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
The Commission notes that the duty to reasonably accommodate is ongoing. We find that Complainant's claim addresses an allegation of ongoing reasonable accommodation denial and should be construed as timely raised. See Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 0120130602 (Sept. 12, 2014) (agency improperly dismissed EEO complaint for untimely EEO Counselor contact when management continued to ignore complainant's requests for reasonable accommodation, which complainant asserted were still ongoing). The Commission has stated 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. See "Threshold Issues," EEOC Compliance Manual, at 2-IV (revised July 21, 2005). As such, at the time Complainant contacted the counselor, she was alleging that the agency remained unwilling to allow her to place visual and personal items in a particular way in her workplace as an accommodation for her medical condition. Accordingly, we reverse the dismissal of the complaint at hand.
We also note that at the time Complainant initiated her EEO request, her attorney asked to amend her pending EEO complaint concerning her claim of harassment based on race, age, sex, disability, and retaliation. If Agency No. 4C-450-0105-15 is still pending, the instant complaint should be consolidated with her prior EEO compliant. We remind the Agency that EEOC Regulation 29 C.F.R. � 1614.106(d) provides that a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. In the matter at hand, Complainant merely alleged an additional example of the harassment she experienced by the same management official. As such, the matter should have been treated as an amendment rather than a separate EEO complaint.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision and REMAND the complaint for investigation and processing in accordance with the below ORDER.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. If Agency No. 4C-450-0105-15 is still pending, the Agency is ordered to consolidate the instant matter with Complainant's prior EEO Complaint. If Agency No. 4C-450-0105-15 is no longer being processed by the Agency, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 (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
April 6, 2017
__________________
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 record indicated that Complainant amended the complaint to include additional issues of harassment on December 17, 2015 and March 8, 2016.
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