0120160605
05-06-2016
Maryland E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maryland E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120160605
Agency No. 4G770026115
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 28, 2015, 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 City Carrier Assistant at the Agency's Post Office facility in Lake Jackson, Texas. On October 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (right foot injury) when:
1. Complainant's employment was terminated, effective March 6, 2015.
The Agency dismissed the claim for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 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.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The effective date of Complainant's termination was March 6, 2015 and the record shows that Complainant first contacted an EEO Counselor on August 17, 2015, which is beyond the 45-day regulatory limit. Complainant maintains that she was unaware of her termination until July 20, 2015. The record shows that Complainant injured her foot on February 28, 2015, and was off work from March 1 until July 27, 2015. Complainant maintains it was not until she contacted the Human Resources office on July 20 that she learned she had been terminated, effective March 6, and that her August 17 Counselor contact was therefore timely. The Agency argues that Complainant had been aware of her termination prior to that date because she had been issued an Absence Inquiry letter dated March 23, 2015 which stated as follows:
Records indicate that you have been absent since March 1, 2015. . . . Immediately upon receipt of this letter you are to contact me. You must immediately report back to duty as scheduled and/or you must provide acceptable evidence of your inability to report since March 1, 2015. If the absence was related to an illness then the doctor must certify that you were under his professional care during the entire period of absence. . . . Failure to provide acceptable documentation as required and/or report back to duty within five days receipt of this letter if not response by May 1, 2015 Lake Jackson post office will remove you off the roles for abandonment of your job.
The Agency maintains Complainant did not respond to the letter and was therefore terminated. We note that Complainant does not deny receiving this notice and maintains that she did respond to it on March 26, 2015, stating on appeal that on that date "the medical response was faxed from the physician's office. Confirmation was received. On the same date I also sent a CA-1 (Federal Notice of Traumatic Injury) by fax with confirmation receipt." The record contains copies of the documentation Complainant faxed to the Agency on March 26, 2015. Complainant further maintains that she called the Agency and spoke to her supervisor on April 14, 2015 to inquire about her Office of Worker's Compensation claim that she faxed on March 26 along with her medical documentation and that her supervisor did not tell her on that occasion that she had been terminated. A review of the medical documentation faxed by Complainant shows that it states that Complainant was under a Physicians' care from March 3, 2015 "to present (till further notice)" for "Right foot contusion, edema." The notice indicated that Complainant was under medical restrictions requiring her to be "non-weight bearing; in a cam [sic] walker until further notice".
We note, however, that the Absence Inquiry letter notified Complainant that the required medical documentation:
Should provide an explanation of the nature of the employee's illness or injury sufficient to indicate to management that the employee was (or will be) unable to perform his or her normal duties for the period of the absence. Normally medical statements such as "under my care" or "received treatment" are not acceptable evidence of incapacitation to perform duties.
We note that, according to the record, the documentation submitted by Complainant in response to the Absence Inquiry letter was not addressed to the author of that letter, nor did it refer to that letter or its contents, specifically, the threat of termination. Nor did her medical documentation "provide an explanation of the nature of [Complainant's] illness or injury sufficient to indicate to management that [Complainant] was (or will be) unable to perform ... her normal duties for the period of the absence." We note that Complainant does not contend that she called or contacted the Agency at or around the same time as her fax to ascertain whether her documentation was sufficient. Given the fact that Complainant was placed on notice that the medical documentation had to be reasonably specific, and that "failure to provide acceptable documentation" placed her at risk of being terminated, we find that Complainant should have developed reasonable suspicion of termination on or about May 1, 2015. Accordingly her August 17, 2015 Counselor contact was untimely.
CONCLUSION
The Dismissal is AFFIRMED.
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 (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 6, 2016
__________________
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.
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