0120160741
03-03-2016
Tien E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tien E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120160741
Agency No. 1G-721-0010-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 2, 2015, dismissing her complaint of 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
At the time of events giving rise to this complaint, Complainant worked as a Manual Distribution Clerk at the Agency's facility in Little Rock, Arkansas.
On October 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on June 15, 2015,Complainant became aware that the Agency plotted to keep her from receiving Office of Workers' Compensation (OWCP) payments;
2. on June 29, 2015, Complainant received a letter from OWCP referencing a new claim and subsequently, on July 30, 2015, she received an OWCP claim acceptance letter, and she felt the Agency sent them the wrong form in 2012;
3. on July 16, 2015, Complainant had a District Reasonable Accommodation Committee (DRAC) meeting and she felt that they were trying to take her job; and
4. on September 19, 2015, her hours were changed from 10:00-20:30 to 11:30-22:00.
The Agency dismissed claims (1) and (2) pursuant 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that Complainant's claim constituted a collateral attack on the OWCP process. As for claims (3) and (4), the Agency dismissed both these claims, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency indicated that there was no action taken against Complainant in claim (3). In claim (4), the Agency held that a shift in work hours of only an hour and a half was not sufficient to state a claim. Therefore, the Agency dismissed the complaint as a whole. This appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
As for claims (1) and (2), Complainant alleged that the Agency's Injury Compensation office was not properly processing her OWCP claims. Complainant asserted that the forms were filled out incorrectly and as a result, her claim with OWCP was denied. The Commission has held that while the proper forum for contesting the outcome of an OWCP claim is with the Department of Labor, the Commission has retained jurisdiction for allegations that the Agency delayed processing a claim because of discriminatory animus. See Foster v. U.S. Postal Serv., EEOC Appeal No. 01951370 (May 8, 1995), req. for reconsideration denied, EEOC Request No. 05950693 (May 16, 1996); but see Wade v. U.S. Postal Serv., EEOC Request No. 05980149 (Feb. 2, 2001) (finding that where complainant's OWCP claim was denied on the merits, complainant suffered no harm by the agency's alleged discriminatory delay in processing the claim). Therefore, to the extent Complainant has alleged a claim of discrimination based on the outcome of the OWCP claim, we find that the claim should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). However, Complainant has also alleged that Injury Compensation has filed the wrong forms and provided bad information, thereby delaying her OWCP compensation. Further, Complainant claimed that the Agency's actions were based on her condition and in retaliation. To that extent, we determine that the Agency's dismissal is not appropriate.
Turning to claim (3), Complainant stated that she was sent to the DRAC after being in her position for over 200 days. Complainant argued that there should have been no reason to send her to DRAC because she was assigned work she could perform within her medical limitations. She asserted that the Agency was harassing her by sending her to the DRAC to scare her by threatening to reassign her to another position. Further, in claim (4), Complainant indicated that she was not just shifted in her work hours to 11:30-22:00. She also alleged that she was passed over for a more favorable work shift. She asserted that there was work available from 8:00 - 18:30 but she was given a shift that began at 11:30. The Agency argued that a shift of an hour was not sufficient to state a claim. However, here Complainant has asserted that rather than being provided with a morning start time, she was given a mid-day start time. Complainant claimed that these events were examples of how she has been mistreated by the Agency based on her disability and her prior protected activity.
Upon review, based on the four claims raised by Complainant in her formal complaint, we find that Complainant has alleged a viable claim of harassment and disparate treatment based on her disability and in retaliation for her prior EEO activity. As such, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim was not appropriate.
CONCLUSION
Therefore, based upon review of the records, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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. 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
March 3, 2016
__________________
Date
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.
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