[Redacted], Alyce R, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2021004869 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alyce R,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004869 Agency No. 4E-926-0041-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 6, 2021, dismissing a formal complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Rural Carrier at the Agency’s facility in Corona, California. On April 13, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 15, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Hispanic), sex (female), disability, age, and in reprisal for prior protected EEO activity. In it August 6, 2021, final decision, the Agency determined that the formal complaint was comprised of the following claims: 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 2021004869 1. On April 27, 2018, [Complainant was] injured on the job and [was] not offered a position until January 2020; 2. In April 2019, [Complainant was] informed that management showed [her] co-workers pictures of her injury and stated [she was] faking and would be fired once she returned to work; 3. In January 2020, [Complainant was] questioned about why [she was] leaving parcels and curtailing mail; 4. In March 2020, [Complainant was] left with no assistance on [her] route and given the run around about a missing paycheck; 5. In March 2020, [Complainant was] yelled at several times on the workroom floor by management; 6. On May 15, 2020, [Complainant was] given an investigative interview; 7. On unspecified dates from January-May 2020, [Complainant was] issued discipline; 8. In May 2020, [Complainant was] informed that due to a change in [her] weight limit restrictions, [she was] sent home indefinitely and this resulted in termination of Federal Health Benefits and a default in [her] TSP loan. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO Counselor contact until April 13, 2021, almost a year after she was sent home from work in May 2020. The Agency also reasoned that the doctrine of laches applies to this case. The Agency further set forth that Complainant had constructive knowledge of the applicable time limit due to a poster displayed at her facility. The Agency further found that Complainant abandoned the following two claims: 1) On March 26, 2021, management paid her military leave instead of OWCP and 2) on an unspecified date, Complainant received a request to reimburse the Agency for overpayment. The Agency found that Complainant initially raised these matters in EEO Counseling but did not reallege them in her formal complaint. The instant appeal followed. Complainant, through her attorney, requests that we reverse the Agency’s final decision dismissing her complaint. Complainant asserts that she is raising an ongoing violation of a denial of a reasonable accommodation and an ongoing claim of reprisal for seeking an accommodation. Complainant asserts that the Agency erred and fragmented her complaint by viewing the alleged incidents as discrete acts rather than as an ongoing denial of a reasonable accommodation. 3 2021004869 Complainant further asserts that she did not have actual or constructive knowledge of the applicable time limit because there is only one EEO poster at her facility. She asserts that the poster is located near the city carriers’ entrance and she is a rural carrier and used the rural carriers’ entrance, which is located on the other side of the building. Complainant states that she was told by management that she must raise any failure of the Agency to provide her with work with the Department of Labor, and that immediately after learning the Agency had on obligation to accommodate her, she contacted the Agency’s EEO Office. Complainant asserts that she did not abandon her claim that the Agency improperly coded her time as military leave but that this matter is related to her ongoing reprisal claim. Finally, regarding the matter that Complainant received a request to reimburse the Agency for overpayment, Complainant asserts this is “not a claim of discrimination” but a “claim for foreseeable damages” related to the Agency’s failure to accommodate.2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should 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. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 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. The Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. As an initial matter, we find that Complainant is alleging an ongoing hostile work environment claim which includes, but is not limited to the following matters: being issued disciplined, not being provided assistance on her route, telling her co-workers that her injury is fake and that she will be terminated, being subjected to an investigative interview, an ongoing denial of a reasonable accommodation claim when she was sent home from work in May 2020, and having her life insurance benefits terminated. The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim “collectively constitute one unlawful employment practice,' the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside of the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). 2 Because Complainant acknowledges that the Agency’s request to be reimbursed for overpayment is not a claim of discrimination (but rather a request for damages), we decline to address this matter further herein. 4 2021004869 Complainant has alleged incidents that have continued up until her request for EEO counseling. For example, the record reflects that the Agency terminated her life insurance benefits effective May 22, 2021, after seeking EEO counseling. Complainant also asserts that the Agency sent her home based on her medical restrictions in May 2020, and has failed to provide her with an accommodation on an ongoing basis (recurring violation). Specifically, the EEOC Compliance Manual, Section 2, “Threshold Issues”, p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides 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.” Thus, Complainant is alleging that she has been denied a reasonable accommodation on an ongoing basis through the date she sought EEO counseling.3 Regarding the Agency’s finding that Complainant abandoned her claim that the Agency improperly coded her leave as military leave because she failed to raise this matter in her formal complaint, we disagree. Complainant is asserting that the Agency coded her leave as military leave, although she has never been in the military, in an effort to disrupt her OWCP benefits. Complainant further asserts that she is not contesting a determination by OWCP but rather how the Agency is coding her leave. This alleged incident is part of Complainant’s overall hostile work environment claim. In addition, we find that Complainant clearly alleged an ongoing hostile work environment in her formal complaint. Thus, we do not find that Complainant abandoned this matter. Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. § 1614.108 et seq. 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. 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. 3 As set forth above, Complainant has alleged an ongoing hostile work environment claim which continued through the date she sought EEO Counseling, thus, we find that the doctrine of laches does not apply to this matter. 5 2021004869 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 6 2021004869 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 7 2021004869 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 December 13, 2021 Date