Loida J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 26, 20180120182537 (E.E.O.C. Oct. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Loida J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120182537 Agency No. 4K300013718 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 15, 2018, dismissing her 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 Sales and Services Associate at the Agency’s Post Office facility in Covington, Georgia. On May 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (back injury) when: 1. On or around January 24, 2018, Complainant was denied a reasonable accommodation. The Agency characterized the claim differently, finding two claims. In the first, the Agency characterized the claims as alleging that Complainant’s then-Supervisor contacted Complainant’s therapy office to find out if there were no appointments available in the morning, as Complainant had claimed. The Agency dismissed this claim for untimely EEO Counselor contact. 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. 0120182537 2 In the second claim, the Agency characterized the complaint as alleging that the Officer in Charge stated she would not approve any leave Complainant sought to submit for therapy appointments. The Agency dismissed this claim on the grounds that it addressed a proposed action. The instant appeal followed. ANALYSIS AND FINDINGS Complainant alleges that his first supervisor (S1) scheduled him to work during hours that he had physical therapy appointments for his back injury. When Complainant alerted her to the conflict, she asked him if he could reschedule his therapy appointments to earlier in the day. When Complainant’s therapist wrote to S1 explaining that there were no other time-slots available, S1 called the therapist’s office posing as a new patient and asking for an early time-slot on Mondays. According to Complainant, the receptionist told S1 that they were fully booked at that time but maybe they could fit her in. S1 then contacted Complainant and told her that the therapist had lied and that Complainant could be booked in at an earlier time, and that she would no longer accept a doctor’s excuse. After S1 transferred to another facility in mid-January 2018, Complainant’s therapist wrote to Complainant’s new Officer in Charge (OIC) but OIC told Complainant that S1 had fully updated her on Complainant’s “issues,” that she would not be making any changes and that, if Complainant needed therapy she would have to use personnel leave. Under 29 C.F.R. § 1614.107(a)(5), an Agency shall dismiss a complaint that alleges that proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Following a review of the record we do not find that OIC’s comments constituted a proposed action. On the contrary, based on Complainant’s account, OIC’s decision by all appearances, was final. The fact that OIC was addressing a future action does not change the finality of her decision. We note in this regard that the record does not indicate that her decision to deny all future leave requests was contingent on further review or that she was open to changing her mind based on additional evidence. Nor is it reasonable to expect Complainant, once faced with the promise that all future requests would be denied, to then go ahead and formally file a request for a specific date despite the blanket denial in order to preserve the right to file a complaint. Furthermore, we find that Complainant’s claim is more accurately characterized as a denial of reasonable accommodation when Complainant sought either time-off from work or a schedule adjustment to accommodate his physical therapy needs and this request was denied. We further find that Complainant’s Counselor contact was timely with regard to this issue. The Agency has not addressed this claim and hence we find that a remand is appropriate. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final order and REMAND the claim for further processing in according with this decision and the Order below. 0120182537 3 ORDER (E0618) The Agency is ordered to process the remanded claim (as defined in this decision) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0618) 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. 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. 0120182537 4 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 (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. 0120182537 5 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 October 26, 2018 Date Copy with citationCopy as parenthetical citation