0120181563
07-19-2018
Wendy Y.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wendy Y.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120181563
Agency No. AK300005518
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's March 26, 2018, dismissal of her 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., and 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 Postal Support Employee ("PSE") at the Rayle Post Office in Rayle, Georgia.
According to Complainant's March 5, 2018 Formal Complaint and related documents, including the EEO Counselor's Report, Complainant alleges that she was subject to discrimination on the bases of race (African-American), sex (female), physical and mental disability (Multiple Sclerosis), and reprisal (prior protected EEO activity) when:2
1. in and around December 2016, she was not provided additional work hours,
2. on March 25, 2017, she received an official letter of warning for failure to properly scan parcels,
3. on March 25, 2017, she received fewer work hours than her coworkers,
4. on March 25, 2017, her request to see a union steward was denied, and
5. on September 12, 2017, she met with the District Reasonable Accommodation Committee ("DRAC"), which denied her request for accommodations.
The Agency dismissed Claims 1, 2, 3, and 4, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely contact with an EEO counselor.
The Agency did not issue a decision on Claim 5, determining that Complainant abandoned the matter when she did not list it as a claim in her Formal Complaint.
ANALYSIS AND FINDINGS
Claims 1, 2, 3, and 4 - Untimely EEO Counselor Contact
Under �1614.105(a)(1), an aggrieved party must initiate contact with an EEO Counselor within 45 days of the date of the alleged discriminatory action, or, for a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the Commission may extend the time limit if complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The alleged action in Claim 1 occurred in December 2016, yet Complainant did not initiate contact with an EEO Counselor until nearly a year later, on November 27, 2017. Likewise, the alleged discriminatory actions in Claims 2, 3, and 4 all occurred on March 25, 2017, yet Complainant did not raise them with her EEO Counselor until she filed her Formal Complaint on March 5, 2018, again, well over the 45-day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, the Agency's dismissal of these claims was correct.
Claim 5
It is well established that when a complainant receives counseling on an allegation, but does not go forward with a formal complaint on that allegation, the matter is deemed abandoned, and cannot be raised in another complaint. See Sterling v. United States Postal Service, EEOC Appeal No. 01A34646 (Feb. 19, 2004), Small v. United States Postal Service, EEOC Request No. 05980289 (Jul. 16, 1999).
Where there is a thematic nexus between issues in the formal complaint and claims that were raised during the pre-complaint process but not presented in the formal complaint, those pre-complaint issues should not be considered abandoned and the issues in the formal complaint should be construed as one part of the entire claim. Lee v. United States Postal Serv., EEOC Appeal No. 0120113980 (Mar. 23, 2012) see also Guice v. United States Postal Serv., EEOC Appeal No. 0120113857 (Jan. 30, 2012) (finding a complainant's allegations during pre-complaint counseling are not "abandoned" when she did not expressly state them in her formal complaint, as she "incorporated them by reference" by citing her pre-complaint in the description portion of the formal complaint, and subsequently raising the allegations during counseling).
Here, when Complainant sought EEO counseling, she raised the allegation in Claim 5, that on September 12, 2017, her request for reasonable accommodation was denied. However, she failed to specifically list the allegation in Claim 5 in her Formal Complaint. The Agency deemed the allegation in Claim 5 abandoned, and declined to accept it for further processing pursuant to 29 C.F.R. � 1614.105.
We find the Agency erred in its determination, as Complainant both established a thematic nexus and referenced the allegation in Claim 5 based on her response to the "requested remedy" portion of the Formal Complaint form. Specifically, she requested "to be reassigned from the Rayle office to the Main Office for assignments within [her] medical restrictions," a reasonable accommodation. Claim 5 is Complainant's only allegation related to a reasonable accommodation. Moreover, Complainant's Formal Complaint is further clarified by the EEO Counselor's report, and Complainant's arguments on appeal, which focus on Complainant's allegations related to the DRAC denial of reasonable accommodations.
Although the Agency did not process the allegation in Claim 5, we find the record is sufficiently developed to establish that Claim 5 meets the threshold issues of stating a claim pursuant to C.F.R. �1614.107(a)(1) and timeliness under C.F.R. �1614.107(a)(2). Complainant's membership in a protected class and alleged denial of a reasonable accommodation render her "aggrieved" for purposes of stating a claim. Regarding timeliness, we note that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-IV(C)(1)(a) (July 21, 2005); Akbar v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102856 (Dec. 11, 2012).
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Claims 1, 2, 3, and 4.
We hereby REMAND the matter in Claim 5 for processing in accordance with this Decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims 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 (K0618)
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.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 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. 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. 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
July 19, 2018
__________________
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.
2 Complainant raises new allegations on appeal concerning lack of responses to her "Open Record Requests" to Agency employees. As this issue is not in the complaint before us, it will not be adjudicated in this decision. Complainant may raise these allegations in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
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