Nida R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20180120172580 (E.E.O.C. Nov. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nida R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120172580 Hearing No. 430-2014-00303X Agency No. 4K230000914 DECISION On July 21, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Bellevue Station in Richmond, Virginia. On January 31, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability, and in reprisal for prior protected EEO activity when: 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. 0120172580 2 1. she was informed that the District Reasonable Accommodation Committee would be closing her request for accommodation because her Manager told them that she was being accommodated; and 2. her request for Light Duty was not considered and she was not allowed to work due to her restrictions. At the conclusion of the investigation, 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 Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing. On May 2, 2017, the AJ issued a decision finding that Complainant had proven disability-based discrimination as alleged in Claim (1) of the complaint, but failed to prove Claim (2) of the complaint. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).2 ANALYSIS AND FINDINGS Despite having filed an appeal from the AJ’s decision, Complainant does not seek to reverse or modify it. In her appeal statement Complainant recites that she is “filing an appeal not against the Judge’s decision but to enforce the Judge’s decision.” Commission precedent permits an appeal of an AJ’s decision where the Agency has failed to act. See, e.g. Harding v. Dep’t of Def., EEOC Appeal No. 01A03019 (Apr. 26, 2001); Carter v. Dep’t of Energy, EEOC Appeal No. 01A05026 (Feb. 16, 2001); and Jones v. Dep’t of Agric., EEOC Appeal No. 01A02102 (Aug. 8, 2000). Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § III.A.n.4 (Aug. 5, 2015) provides that if an agency fails to take any action during the 40-day period, the Administrative Judge's decision would be deemed ratified and the complainant would be entitled to file an appeal of the Administrative Judge's decision as ratified after the expiration of the 40-day period. The agency would not be permitted to cross-appeal or challenge any aspect of the Administrative Judge's decision in this situation. In light of the foregoing, our function in this matter is quite limited. There is no occasion to further review the merits of the claim. We need only affirm the AJ’s decision as incorporated in the Agency’s final action and order the Agency to comply with it. 2 After the instant appeal was filed, the Agency issued a final order, dated August 11, 2017, fully implementing the AJ’s May 2, 2017 decision. 0120172580 3 CONCLUSION Accordingly, we AFFIRM that AJ’s decision and the Agency’s final order implementing it. The Agency is directed to comply with the ORDER below. ORDER To the extent that it has not done so, the Agency is ORDERED to take the following remedial actions: 1. Within sixty (60) days from the date of receiving this decision, the Agency is ordered to pay Complainant $42,750.00 in compensatory damages for the pain and suffering she endured as described in the proceedings below. 2. The Agency is ordered to restore any sick leave or annual leave used for medical purposes that Complainant may have taken from December 2012 through December 2014. Complainant is responsible to provide a list of dates and documents to support the dates that she utilized leave due to her gastrointestinal diseases. 3. The Agency is ordered to proceed through a complete and thorough interactive process to determine an appropriate reasonable accommodation and/or alternative position in which Complainant may be transferred. 4. In the event that the management officials found to be responsible in this case remain employed by the Agency, they each shall be provided a minimum of eight (8) hours of training, within one year from the date of this decision. This training should focus on the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 706, et. seq. (2006), and the Americans with Disabilities Act Amendments Act, 29 C.F.R. 1614.203, to ensure that acts of disability discrimination cease. The Agency shall address these employees' responsibilities with respect to accommodating disabled employees in the workplace and all other supervisory and managerial responsibilities. 5. The Agency shall take appropriate preventative steps to ensure that no employee is subjected to any form of discrimination or denied a reasonable accommodation when appropriate. Agency is further directed to submit a report of compliance provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation of the Agency's calculation of back pay, and other benefits due complainant, including evidence that the corrective action has been implemented. 6. The Agency shall consider discipline against responsible management officials. Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. 0120172580 4 7. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 8. The Agency shall post a notice in accordance with the Order below. POSTING ORDER (G0617) The Agency is ordered to post at the at its Bellevue Station in Richmond, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP. ). See 29 C.F.R. § 1614.403(g) ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 her representative. 0120172580 5 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 (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. 0120172580 6 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 November 8, 2018 Date Copy with citationCopy as parenthetical citation