0120161037
05-10-2016
Towanda B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Towanda B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161037
Agency No. 4G730005515
DECISION
Complainant timely appealed to this Commission from the Agency's October 1, 2015 dismissal of 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 City Carrier (Level 01/J) at the Agency's Centennial Station Post Office in Edmond, Oklahoma.
On December 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (knee injury) and reprisal for prior protected EEO activity when:
1. On October 25, 2014, she was issued a fourteen (14) day suspension;
2. On April 23, 2015, she was issued a notice of removal;
3. On July 29, 2015, she became aware that a Health and Resource Management Specialist ("HRM") controverted her claim for compensation filed with the Department of Labor-Office of Workers Compensation ("OWCP");
4. On September 16, 2015, her request for reasonable accommodation was denied by the Reasonable Accommodation Committee ("RAC"); and
5. On August 25, 2015, and October 1, 2015, management provided her with a job offer which she believed exceeded her medical restrictions.
On August 26, 2014, Complainant reported to work after nearly four years recovering from an on the job knee injury. Just under three hours into her delivery route, while getting out of her mail truck, Complainant's right knee buckled inward as her foot hit the ground, reinjuring her knee and causing severe pain. Unable to finish her route, she went to the emergency room. A doctor provided her with a full leg immobilizing brace to wear while walking, and informed her she required an orthopedic specialist. Complainant did not return to work and submitted a new OWCP claim, which was rejected.
On October 25, 2014, Complainant received a Notice of Suspension of 14 Days and an investigation was initiated because, among other things she did not return to work after she went to the hospital on August 26, 2014. Complainant pursued an EEO claim and grievance, and as part of a settlement agreement, the Notice was rescinded on January 7, 2015.
On April 23, 2015, the Agency issued Complainant a Letter of Removal. The OWCP consistently rejected Complainant's medical documentation and claims for her ongoing treatment. As a result, the Agency counted Complainant's absences as AWOL, warranting removal. By EEO settlement agreement, the Letter was rescinded and Complainant was recommended to the Reasonable Accommodation Committee ("RAC") on July 8, 2015.
On or around July 5, 2015, Complainant, on the advice of her doctor and in an effort to get OWCP to accept her medical claims, submitted a new CA-1 form indicating that the August 26, 2015 injury was a new condition rather than the reinjuring of her previous on the job knee injury. The Agency's Health and Resource Management Specialist ("HRM") HRM reviewed Complainant's claim, and attached a challenge letter when she submitted it to the OWCP in the Department of Labor ("DOL"). HRM asserts that part of her job responsibilities when representing the Agency is to challenge claims, and alleges Complainant provided no medical rationale, and Complainant was only filing because she recently received discipline (at the time, the April 23, 2015 Letter of Removal was still pending).
On August 10, 2015, Complainant met with RAC where she discussed her physical limitations and duties she was able to perform, and the supervisor who was present stated he did not have any vacant positions and the duties she described were mostly considered a "bid job" and could not be assigned as a reasonable accommodation. On September 16, 2015, RAC formally notified Complainant that no positions at the Agency are available based on her restrictions. On August 22, 2015 and on October 1, 2015, Complainant received an offer to carry her old route. The postmaster informed Complainant that was the only position available to offer because the OWCP did not accept her documentation. By this point, Complainant already initiated contact with an EEO counselor for the instant complaint on August 19, 2015.
The Agency dismissed Complainant's complaint in its entirety on multiple grounds pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and 29 C.F.R. � 1614.107(a)(2), for untimely contact with an EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in relevant part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. 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 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual on Retaliation, No. 915.003 (May 20, 1998)) Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. The Commission reviews reprisal claims "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)
Claims 1 and 2
EEOC Regulation 29 C.F.R. � 1614.107(a)(1), provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996)
The Agency provided sufficient evidence that Claims 1 and 2 state the same claims Complainant brought in Agency Case Nos. 4G730000515 and 4G730003315, referenced in the instant complaint as Complainant's "prior protected EEO activity." Both were resolved via settlement agreement on January 7, 2015 and July 8, 2015 respectively. In each agreement, Complainant, under guidance of counsel, expressly waived her right to raise the allegations in Claims 1 and 2 before this Commission. EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties.
The Agency properly dismissed Claims 1 and 2 for failure to state a claim under 29 C.F.R. � 1614.107(a)(1). We also affirm the Agency's alternate dismissal of Claims 1 and 2 pursuant to EEOC Regulation 29 C.F.R. � 1614.105(a), untimely contact with an EEO Counselor.
Claim 3
The Commission has generally held that complaints involving other administrative proceedings, including the OWCP and related processes, do not state a claim under 29 CF.R. � 1614.107(a)(1). See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (September 29, 1994) The Commission's rejection of such claims includes allegations of retaliation and harassment based on an Agency's actions while processing OWCP claims. See Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001) (dismissing a complainant's claim that the Agency was falsifying and failing to check her documentation for completeness before submitting it to OWCP) see also Schneider v. United States Postal Serv., EEOC Request No. 05A01065 (August 15, 2002) (rejecting complainant's claim that the Agency's delay in processing her OWCP paperwork constituted harassment) Complainant v. United States Postal Serv., Appeal No. 0120151132 (finding a complainant's retaliation and harassment claims based on the Agency's mishandling of benefit claims and payroll records was a collateral attack on another administrative process)
Claim 3 alleges that the Agency (through HR) harassed and retaliated against Complainant when HR sent the July 7, 2015 letter challenging and contravening her OWCP claim. On appeal, Complainant points out that one of her prior EEO complaints was still pending at the time it was sent. Even applying the broad view of coverage we afford reprisal claims, we find Complainant's argument insufficient to reverse the Agency's decision. Claim 3 is based on the processing of Complainant's OWCP claim. Therefore, Claim 3 is beyond the scope of EEOC authority. The proper venue for Complainant to address her concerns about the neutrality of the OWCP claim process is with the Department of Labor OWCP.
Claims 4 and 5
A complainant commences the EEO process by contacting an EEO Counselor and "exhibiting intent to begin the complaint process." See Hawkins v. Dep't of the Interior, EEOC Appeal No. 01990377 (July 29, 1999), Gates v. Dep't of the Air Force, EEOC Request No. 05910798 (Nov. 22, 1991) (quoting Moore v. Dep't of Treasury, EEOC Request No. 05900194 (May 24, 1990)). Under 29 C.F.R. �1614.105(a)(1) an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.106(d) provides that a complainant may seek to amend a complaint at any time prior to the conclusion of the investigation, and the section makes no mention of a time limit. Further, there is no requirement that Complainant seeks or receives counseling on the new claims. See Braxton v. United States Postal Serv., EEOC Appeal No. 0120102410 (October 29, 2010).
Complainant did not indicate her intent to bring Claims 4 and 5 to the attention of an EEO Counselor as new complaints, or generally, until she filed her formal complaint on December 1, 2015. We note that Complainant contacted her EEO Officer on other matters during the relevant time frame, but there is no reference to the allegations in Claims 4 and 5 prior to the conclusion of the investigation. If brought as separate complaints, the 45 day limitation period to initiate contact with an EEO Counselor ended at least two weeks before December 1, 2015.
The Agency properly dismissed Claims 4 and 5 pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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. The requests 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 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
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
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
May 10, 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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