[Redacted], Michell B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2021000127 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michell B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000127 Agency No. 4C-400-0070-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 3, 2020, dismissing a formal complaint of 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., 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. BACKGROUND During the relevant period, Complainant worked as a Postal Support Employee (PSE) Mail Processing Clerk at the Agency’s Bluegrass Station in Lexington, Kentucky. On April 30, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 11, 2020, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination based on race, disability, age, and in reprisal for prior 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. 2021000127 2 1. from on or around December 19, 2019 to March 2020,2 she was not accommodated per her medical restrictions when she was not permitted to work; 2. on March 31, 2020 and April 2, 2020, she felt harassed when management questioned her about her shoes, and for being late; and 3. on May 6, 2020, she was not given an opportunity to speak to the union president. As reported in the related EEO counseling report, Complainant stated that on December 19, 2020, she was sent home, by the Postmaster when she arrived at work for wearing improper shoes. Complainant stated she was told to get leather shoes or medical documentation. Complainant explained she has a medical condition which does not allow her to wear leather shoes, which is a requirement for postal craft employees. Complainant stated that, despite providing medical documentation, management would not allow her to return to work for over three months waiting for a meeting and decision by the District Reasonable Accommodation Committee (DRAC). The EEO counseling report stated Complainant eventually had a meeting with the DRAC on February 12, 2020, and her request for alternative footwear was eventually approved on or around March 14, 2020. However, Complainant alleged in her formal complaint that she was not permitted to return to work by management until on or around March 30, 2020. REDRESS On September 3, 2020, the Agency issued the instant final decision. The Agency dismissed claim 1 for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency further dismissed claims 2 and 3 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Regarding claim 3, the Agency found that the subject claim is a collateral attack on the negotiated grievance process. The Agency stated that Complainant should have raised her claim through the negotiated grievance process, and not through the EEO complaint process. The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO Counselor contact: Claim 1 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. 2 While the Agency defined the claim as ending on March 14, 2020, the EEO counseling report indicates it was on March 30, 2020. 2021000127 3 Here, Complainant first sought EEO counseling on this matter on April 30, 2020. The Agency argues that this contact was untimely because it was 47 days from the date Complainant’s request for reasonable accommodation was approved by the DRAC on March 14. However, we note that in the EEO counseling report, in the narrative statement attached to her formal complaint, and on appeal, Complainant alleged that management, despite medical documentation, did not allow her to work from December 18, 2019 until March 30, 2020. Therefore, we conclude that Complainant’s April 30, 2020 EEO counselor contact was made within the 45-day time limit and was timely. At its core, claim 1 involves an allegation of a denial/unreasonable delay in approving a request for reasonable accommodation regarding Complainant’s footwear. This claim was ongoing and continued at least until she was returned to work on March 30, 2020.3 Therefore, the Agency erred in dismissing this claim as untimely. Failure to state a claim: Claims 2 and 3 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). First, we note that it appears in her statement on appeal that Complainant has asserted that she never intended the claim that she was denied union representation (claim 3) to be part of her complaint. Rather, she indicates she was simply providing background evidence to her main claim concerning the Agency’s refusal to allow her to return to work for more than three months. Moreover, we concur that the proper forum for Complainant to raise a denial of union representation is within the negotiated grievance process where appropriate remedial measures lie, and not the EEO complaint process. Therefore, claim 3 is properly dismissed. With regard to claim 2, Complainant alleges she felt harassed by management on two occasions shortly after she returned to work when she was still questioned about her shoes and for being late. As an initial matter, we conclude that these two incidents should more properly be considered as further evidence in support of claim 1 concerning management’s refusal to accommodate her disability regarding her footwear. The Agency should include these incidents in its investigation of claim 1. 3 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 and failure to provide such accommodation constitutes a violation each time the employee needs it.” 2021000127 4 However, we agree with the Agency that, by themselves, these two incidents are not sufficiently severe or pervasive to constitute a viable independent hostile work environment claim. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998). CONCLUSION We AFFIRM the Agency’s dismissal of claim 2 and 3 for failure to state a claim. However, we REVERSE the Agency’s dismissal of claim 1 for untimely EEO contact and REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim (claim 1 - including incidents reference in claim 3) 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. 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). 2021000127 5 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 (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). Complainant should submit his or her request for reconsideration, and 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 formal 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. 2021000127 6 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 February 9, 2021 Date Copy with citationCopy as parenthetical citation