[Redacted], Cecille W., 1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

Appeal No. 2019000618 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cecille W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2019000618 Agency No. 4C-400-0006-18 DECISION 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 July 17, 2018 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Postal Support Employee (PSE) Mail Processing Clerk at the Agency’s Hikes Point Station in Louisville, Kentucky. On December 13, 2017, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), and in reprisal for prior protected EEO activity. The Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: On November 7, 2017, [Complainant was] issued a Notice of Removal. 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. 2019000618 2 After an 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found no discrimination. Specifically, the Agency found that Complainant did not establish a prima face case of retaliation because the alleged responsible management officials were not aware of her prior protected activity. The Agency also found in its final decision that Complainant did not establish a prima face case of race and/or sex discrimination. The Agency further found that even assuming arguendo that Complainant did establish a prima facie case of discrimination and/or retaliation, it articulated legitimate, nondiscriminatory reasons for Complainant’s removal. Specifically, the Agency found that the Notice of Removal set forth that Complainant was removed because she had been absent since August 1, 2017 and continuing. The Agency found that Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination and/or retaliation. The instant appeal followed. On appeal, Complainant asserts that she was reinstated through the grievance process. She states that she is still seeking lost wages for the time she was not provided with work. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). We find that Complainant in her pre-complaint documentation, formal complaint and EEO investigative affidavit raised a denial of a reasonable accommodation claim based on disability (migraines) which was not addressed by the Agency in its final decision. The record contains a copy of the EEO Counselor’s Report. Therein, Complainant asserts that she had migraines and that a named manager would not accept her medical documentation and that management would not provide her with a reduced schedule. Report of Investigation (ROI) at 17. According to the EEO Counselor’s Report, one manager asserted that Complainant submitted medical documentation that was not sufficient and that Complainant was charged with Absence without Leave. ROI at 18. 2019000618 3 In addition, another manager, according to the EEO Counselor’s Report stated that Complainant provided medical documentation for her restrictions which included working approximately 30 hours per week between 8 a.m. and 5 p.m. Id. The manager stated that Complainant was not needed during these hours. Id. Complainant also raised the denial of a reasonable accommodation claim in an attachment to her formal complaint. ROI at 9. Specifically, Complainant asserted that she had migraine headaches and that she submitted medical documentation which was not accepted by management. Id. Complainant states that she submitted two return to work statements but she has not been placed back on the schedule and that her restrictions were within the range of what she was previously working. Id. Moreover, Complainant raised a denial of a reasonable accommodation claim in her EEO Investigative affidavit. Complainant asserted that she had migraines and that her restrictions limited her to no more than 30 hours per week between 8 a.m. and 5 p.m. ROI at 76, 81. Complainant asserts that the position she was offered was outside of her restrictions. ROI at 81. While we acknowledge Complainant did not check the basis of disability in her formal complaint, Complainant, as set forth above, has consistently raised throughout the EEO process a denial of reasonable accommodation claim which she alleges subsequently resulted in her removal.2 Thus, we find that the Agency should have addressed this matter in its final decision. See Jackson v. U.S. Postal Serv., EEOC Request No. 05930176 (Aug. 26, 1993) (remanding reprisal claim to agency for supplemental investigation when Complainant raised this matter during EEO Counseling and in her EEO affidavit but did not specifically check off the “reprisal” box on her formal complaint form). Under the Commission’s regulations, an Agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.2 “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). The record is not sufficiently developed regarding Complainant’s reasonable accommodation claim. The requirement that an agency investigate complaints of discrimination is codified at 29 C.F.R. § 1614.108. The Agency has a duty to develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. § 1614.108(b). 2 The record reflects that Complainant did not have a representative throughout the EEO process. 2019000618 4 Assuming without finding, that Complainant is a qualified individual with a disability, we are unable to ascertain based on the record before us what steps, if any, the Agency took to accommodate Complainant’s restrictions. The record contains a copy of a letter dated September 13, 2017, from an Advanced Practice Registered Nurse (APRN) stating that Complainant was able to return work and “[t]o better keep her migraines/headaches under control it is best that she only work regular routine daytime hours.” ROI at 165. The record also contains a letter from APRN dated September 25, 2017, stating that Complainant is able to return to work. ROI at 166. The letter further stated “[i]n order to help keep headaches under better control, it is recommended that patient works no more than 30 [hours] per week between the hours of 8- 5pm.” Id. As set forth above, we are unable to ascertain based on the record, what steps the Agency took to accommodate Complainant; thus, we remand this matter for a supplemental investigation. Finally, a review of the record reflects Complainant is alleging that the denial of her reasonable accommodation (the Agency not providing her work within her restrictions) led to her removal. Therefore, we decline to address her removal herein in order to avoid the fragmentation of her claims. We VACATE the Agency’s final decision finding no discrimination, and we REMAND this matter to the Agency for a supplemental investigation in accordance with the ORDER below. ORDER Within ninety (90) calendar days from the date this decision is issued, the Agency shall complete a supplemental investigation on Complainant’s denial of a reasonable accommodation claim, which shall include the following: 1. The EEO Investigator shall fully investigate Complainant’s denial of a reasonable accommodation claim, including any possible contention by the Agency that providing a reasonable accommodation would impose an undue hardship. The Agency shall ensure that the Investigator obtains all pertinent evidence needed to address Complainant’s reasonable accommodation claim including, but not limited to, sworn affidavits from Complainant and from responsible management officials and other documentary evidence regarding how management responded to Complainant’s requests for accommodation (work within her restrictions). Documentary evidence should include any requests by Complainant for an accommodation and any job offers by management to accommodate Complainant, including possible efforts by the Agency to provide Complainant with a reassignment within her restrictions. 2. Complainant shall have the opportunity to provide a rebuttal affidavit. 3. Once the supplemental investigation is completed, the Agency shall issue a new final decision, with appeal rights to the Commission’s Office of Federal Operations, 2019000618 5 addressing Complainant’s denial of a reasonable accommodation claim and her removal. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP) . This report must include a copy of the supplemental investigation and new final agency decision. 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. 2019000618 6 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. 2019000618 7 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 January 28, 2020 Date