[Redacted], Takako Y., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021001749 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Takako Y.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021001749 Agency No. IJ-494-0017-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action dated September 25, 2020, implementing the dismissal of a formal complaint by an EEOC Administrative Judge (AJ) alleging 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 During the period at issue, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Traverse City Processing & Distribution Center in Traverse City, Michigan. On February 27, 2018, Complainant initiated EEO counselor contact. Informal efforts were unsuccessful. On May 30, 2018, Complainant filed a formal complaint alleging she was discriminated against based on disability when she was wrongly issued an October 18, 2016 notice of removal even though, on January 5, 2018, the Office of Workers’ Compensation Programs (OWCP) expanded her approved work-related injury claim to include dates that were part of the basis of the 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. 2021001749 2 The record reflects the following events leading to the filing of a prior complaint, as well as the instant complaint. Complainant injured her back while at work on or around September 19, 2014. Following the injury, Complainant intermittently missed periods of work. She stopped coming to work at all effective April 25, 2016. Complainant stated that her doctor determined her injury rendered her unable to perform any of the functions of her position. However, Complainant’s medical documentation did not reflect her total incapacity for duty. The Department of Labor’s OWCP partially accepted Complainant’s claim for wage loss from September 19, 2014 through January 9, 2015. Thereafter, her claim was terminated, as it was determined there was no longer any objective medical basis for her continued claims of pain. On or around March 23, 2015, Complainant’s doctor cleared Complainant to work with no medical restrictions. Despite being cleared for full duty, Complainant clamed she was not able to fully perform the duties of her position. The Agency offered Complainant a series of modified assignments, which she accepted. Despite these offers of modified assignments, Complainant’s attendance at work was sporadic. Complainant did not respond to the Agency’s repeated requests for documentation to substantiate her continued absence. Complainant was thereafter issued a series of progressive disciplinary actions for her unsatisfactory attendance, including: a Letter of Warning dated September 1, 2015; a 7-Day Suspension dated November 30, 2015; a 14-Day Suspension dated January 22, 2016. Complainant’s last day in a pay status was April 25, 2016. On July 6, 2016, Complainant filed an application with the Office of Personnel Management (OPM) for a disability retirement. OPM approved her application on May 16, 2017. On May 22, 2017, Complainant was removed from the Agency’s rolls. Meanwhile, on October 14, 2016, Complainant was issued a notice of removal for her attendance issues. Following the issuance of the removal, Complainant filed a prior formal EEO complaint on April 22, 2017, identified as Agency Case No. 1-J-494-0014-17. This case was adjudicated in an October 24, 2017 final agency decision, concluding no discrimination was established. Complainant did not appeal this final decision and her complaint was closed. On February 27, 2018, Complainant again contacted an EEO counselor regarding the October 14, 2016 Notice of Removal, resulting in the instant formal complaint. Following an investigation, Complainant requested a hearing before an AJ. On September 21, 2020, the assigned AJ issued an Order of Dismissal. The AJ dismissed the instant complaint for raising the same matter addressed in the above referenced prior formal complaint. The AJ also dismissed the formal complaint on the alternative grounds of untimely EEO counselor contact. On September 25, 2020, the Agency issued a final action implementing the dismissal of the formal complaint by the AJ. This appeal followed. 2021001749 3 ANALYSIS AND FINDINGS Upon our review of the record, we determine that the AJ properly found that the instant formal complaint raises the same matter which was addressed in Agency Case NO. 1-J-494-0014-17. See 29 C.F.R § 1614.107(a)(1). Both explicitly concern the decision to issue Complainant the October 2016 Notice of Removal. The matter raised in the instant formal complaint appears to be merely an elaboration of the matter which had been previously adjudicated. Moreover, the AJ’s alternative dismissal grounds was proper. Complainant’s initial EEO Counselor contact in February 27, 2018, was more than a year after Complainant was issued the removal notice, well beyond the forty-five-day regulatory time limit. See 29 C.F.R. § 1614.107(a)(2). Complainant has provided no persuasive argument to justify her delay in making timely EEO contact. CONCLUSION The Agency’s final action implementing the AJ’s dismissal of the formal complaint is AFFIRMED for the reasons set forth herein. 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. 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). 2021001749 4 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 (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. 2021001749 5 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 2, 2022 Date