0120071497
10-22-2009
Lucille Marable Clayton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Lucille Marable Clayton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120071497
Hearing No. 340-2006-00017X
Agency No. 4F-926-0148-05
DECISION
On January 25, 2007, complainant filed an appeal concerning her equal
employment opportunity (EEO) complaint alleging 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission REMANDS the
complaint for further processing.
ISSUE PRESENTED
The issue presented is whether the complaint was wholly adjudicated by
the Administrative Judge such that the entirety of complainant's claims
were addressed.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a City Letter Carrier at the agency's San Juan Capistrano Post Office in
Mission Viejo, California. On October 3, 2003, she suffered her first
on-the-job injury to her lower back. On July 27, 2004, she suffered
another injury to her lower back. For each injury, complainant filed for
Office of Workers' Compensation Programs (OWCP) benefits. During the
relevant time period, the agency issued discipline to complainant on
several occasions, ranging from a Letter of Warning to 7 and 14 day
suspensions, all for Failure to Follow Instructions/Irregular Attendance.
In every instance of discipline, complainant's infraction was either
an unscheduled absence from work or tardiness. The record reveals a
limited duty job offer made to complainant on July 31, 2004, in which
her hours were modified by changing her start time to a later time of
the morning, and she was restricted to no lifting over 10 pounds and
no more than 6 hours of walking or standing each day. On November 22,
2004, another limited duty job offer was made, in which she was limited
to no lifting over 10 pounds, and no standing for more than 2 hours and
no walking for more than 2 hours each day.
The agency issued a Notice of Removal to complainant on November 27,
2004 for Irregular Attendance/Failure to Report for Duty as Scheduled
(it was later reduced to a 14 day suspension). Complainant maintained
that her absences were due in part to physical therapy appointments
and the side effects of medication. Complainant invoked her right to
Family and Medical Leave Act (FMLA) protection for her use of sick time
for her medical appointments. A second Notice of Removal was issued to
complainant on February 15, 2005, also for Irregular Attendance/Failure
to Report for Duty as Scheduled. A grievance was filed on behalf of
complainant by her representative labor union, and on June 2, 2005 it
was agreed that complainant would submit her voluntary resignation to
the agency, effective June 10, 2005, in return for which the agency
would withdraw its Notice of Removal and any other pending discipline.
Complainant was not a signatory to the settlement of the grievance.
On June 14, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African American), color
(black), sex (female), disability (back condition and chronic depression),
age (47) and reprisal ("comments made") when:
1. on unspecified dates the Acting Postmaster was grabbing his private
area, which was observed by complainant and by other employees; and
2. on February 16, 2005, she was issued a Notice of Removal dated February
15, 2005, charging her with Irregular Attendance/Failure to Report for
Duty as Scheduled.
On July 21, 2005, the agency issued a Letter of Partial
Acceptance/Dismissal in which it accepted issue 2 for investigation.
The agency rejected the basis of reprisal, finding that complainant did
not have prior EEO activity and that her claim of retaliation should be
dismissed for failure to state a claim, citing 29 C.F.R. � 1614.107(a)(1).
The agency also dismissed issue 1 for failure to state a claim, finding
that complainant was not aggrieved and had not shown that she had suffered
a personal harm for which there was a remedy.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing.
On February 13, 2006, the agency submitted a motion for a decision without
a hearing to the AJ. On April 6, 2006, the complainant submitted her
reply to the agency's motion, to which the agency filed a further reply
on April 20, 2006. On June 1, 2006, the parties held a telephonic
pre-hearing conference and the AJ issued a Scheduling Order on June
2, 2006. In his Scheduling Order, the AJ noted that at the pre-hearing
conference the parties had agreed that the case could be decided on the
record and did not warrant a hearing. The AJ narrowed the definition
of complainant's complaint and defined the issue as follows: "whether
or not the agency failed to reasonably accommodate complainant when
the complainant submitted medical documentation on December 17, 2004
regarding her physical disability (discogenic disc disease) and mental
disability (chronic depression)." The AJ also noted that he "require[d]
additional information" in order to issue a decision. He then requested
that the parties provide information regarding the complaint in response
to 15 informational requests specific to complainant and 10 informational
requests specific to the agency. The parties provided this information
to the AJ and he incorporated it into his consideration of the record
already developed during the investigation. The AJ then issued a decision
without a hearing on August 10, 2006.
In his decision, the AJ addressed complainant's claim that the agency
failed to reasonably accommodate her medical conditions, and found that
complainant had not shown that she was an individual with a disability as
she was not substantially limited by her medical conditions. He concluded
that the agency did not fail to reasonably accommodate complainant after
she submitted medical documentation on December 17, 2004 and on January
20, 2005, and when the agency did not modify her City Letter Carrier
position. The AJ did not discuss the issues previously dismissed by the
agency, and did not discuss the other bases in complainant's complaint.
On August 31, 2006, the agency submitted a Motion for Clarification to
the AJ, noting that he had failed to address complainant's claims of
discrimination on the bases of race, color, sex and age, and the issue
of her removal from the agency's employment. The agency resubmitted its
Motion for Clarification on November 30, 2006, and attempted again to
telephonically contact the AJ on February 27, 2007. The agency maintained
that it was unable to issue a Final Order as required under 29 C.F.R. �
1614.110(a) because issues remained outstanding and unaddressed in the
AJ's decision.
Complainant filed her appeal, on January 25, 2007, in the absence of
an agency final order, as the AJ's decision finding that complainant
failed to prove that she was subjected to discrimination on the basis
of disability became the agency's final action pursuant to 29 C.F.R. �
1614.109(i).
CONTENTIONS ON APPEAL
On appeal, complainant claimed that the AJ erred in not finding that
she was an individual with a disability as her medical conditions were
of long term duration. Her contention is that the agency forced her
to work outside of her limitations, failed to reasonably accommodate
her conditions, failed to take into account the side effects of her
medication and her need to attend doctor and therapy appointments, and
"set her up for failure," thus leading to her removal from employment.
In its response to complainant's appeal, the agency argued primarily
that as the AJ had not addressed complainant's entire complaint, it
was not ripe for adjudication. It noted that there was no evidence or
documentation in the record that showed that complainant had withdrawn
her other bases at the hearing stage. Alternatively, if the Commission
were to address complainant's appeal on the merits of her claim, the
agency argued that complainant had not shown that she had been subjected
to discrimination.
ANALYSIS AND FINDINGS
Procedural dismissals
Initially, we address the agency's procedural dismissals of the basis
of reprisal and of issue 1 from complainant's complaint. We note that
the anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. A variety of activities has been
found to constitute opposition to discriminatory employment practices.
Because the enforcement of Title VII depends on the willingness of
employees to oppose unlawful employment practices or policies, courts
have interpreted section 704(a) of Title VII as intending to provide
"exceptionally broad protection" to those who oppose such practices.
Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784
(February 21, 1992) (citations omitted). Accordingly, we find that
without more information regarding complainant's claim and her potential
opposition to unlawful discriminatory practices (the substance of the
"comments made"), the agency should not have dismiss complainant's claim
of retaliation. We therefore reverse that action and will remand this
matter for further processing.
With respect to issue 1, we find that complainant's claim can be read
as an allegation that she was subjected to harassment and a hostile work
environment based on the Acting Postmaster's alleged behavior. As such,
it was also premature to dismiss claim 1 for failure to state a claim, as
complainant may be able to put forth a set of facts that could establish a
hostile working environment. We therefore, reverse the agency's dismissal
of issue 1, and will remand this matter for further processing.
The AJ's decision
After a careful review of the record, we find that the AJ neglected to
address the entirety of the issues and bases raised in complainant's
complaint. There is no evidence that complainant withdrew the bases
of race, color, sex or age at, or before, the pre-hearing conference.
Additionally, the issue of the Notice of Removal issued to complainant
on February 15, 2005 was also unaddressed. The AJ did not delineate
why he narrowed the focus of the issue decided. Therefore, we find
that a decision on the merits of complainant's complaint has not been
rendered by the AJ, or the agency, which can then be reviewed on appeal.
As such, we decline to address the propriety of the AJ's decision to
issue summary judgment. It is therefore the decision of the Commission
to REMAND the matter to the agency in accordance with this decision and
the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Los Angeles
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is also directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. The agency is ordered to supplement the record,
in a manner to be determined by the AJ subsequently assigned to this
matter, with information regarding claim 1 and complainant's basis of
retaliation. Thereafter, the Administrative Judge shall issue a decision
on the complaint in accordance with 29 C.F.R. � 1614.109, and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
10/22/09
______________
Date
2
0120071497
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120071497