0120160791
03-18-2016
Arleen L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arleen L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160791
Agency No. 1E554001215
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 16, 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 was a retired Mail Processing Clerk (PS-06) who previously worked at the Agency's Minneapolis Processing and Distribution Center facility in Minneapolis, Minnesota.
On August 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (physical) when:
1. The Department of Labor ("DOL") suspended her Federal Employees' Compensation Act ("FECA") payments for approximately 9 weeks, and she was not paid for the period of June 25, 2014 through July 18, 2014, until January 31, 2015;2
2. On August 2, 2014, she was not paid for the period of July 19 through July 26, 2014, and her CA-7 claim form had comments that she was getting other payments; and
3. On July 29, 2014, management intentionally presented her with a job offer that she could not physically perform.
Complainant left the Agency on April 27, 2010 and formally retired on January 31, 2013, accepting an early incentive retirement offer. Complainant received FECA payments by submitting weekly CA-7 Forms ("CA-7's") to the Health Resource Management ("HRM") office for approval, and for submission to the Office of Workers Compensation Programs ("OWCP"), under the purview of the DOL. Complainant's FECA benefits were suspended for a total of 9 weeks, from May 23, 2014 through July 26, 2014. The first half of that time frame was due to her receipt of a $5,000 as part of the early retirement incentive.
Complainant asked HRM why the other CA-7's (June 25, 2014 through July 26, 2014) were had not been paid, noting she had not been reimbursed and had been overcharged for dental and medical benefits as well. Complainant learned that HRM refused to approve the CA-7's (June 25, 2014 through July 26, 2014) and alleges false information had been intentionally added to three of them. On September 12, 2014, Complainant received payment on the CA-7 for the week of July 19, 2014 through 26, 2014. The remaining three CA-7's (June 25, 2014 through July 18, 2014) were paid on or around January 31, 2015, after Complainant made numerous calls to HRM, DOL and her congressional representatives about the matter. Complainant was forced to borrow from her TSP and retirement accounts at a penalty to make up for the missing income.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.105(a)(1), for untimely EEO counselor contact; and in the alternative, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The record discloses that the alleged discriminatory events occurred on June 25, 2014, August 2, 2014, and July 29, 2014, but Complainant did not initiate contact with an EEO Counselor until May 11, 2015, which is beyond the forty-five (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. Complainant alleges that once she received the September 12, 2014, payment for the CA-7 covering July 19, 2014 through July 26, 2014, she assumed she would receive payments for the other three CA-7's as well and an EEO complaint was not necessary. Even if Complainant lacked suspicion when the original 45 day time limitation expired, the record reveals that reasonable suspicion was triggered more than 45 days prior to Complainant's initial contact with an EEO counselor. For instant, Complainant alleges "many phone calls and letters were written... and [DOL, the Agency, HMS] would not share any information as to why [she] wasn't getting paid," and the Congressional response to her inquiry is dated December 2014.
Complainant also argues that she lacked information about where to send her EEO complaint since she left the Agency on April 27, 2010. Complainant has demonstrated that she is tenacious and proactive in contacting other agencies and elected officials on these matters. While she was with the Agency, she filed multiple EEO complaints, so we can presume Complainant had knowledge of the process and an EEO office where she could have obtained the necessary information. Despite this knowledge, Complainant initially contacted our office instead of the Agency. We responded by letter on February 26, 2015 with express instructions concerning the forty five (45) day limit. In its decision, the Agency notes that even basing her EEO counselor contact window on the date of our letter, her date of EEO contact is still untimely. Accordingly, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. 1614.107(a)(2).
Failure to State a Claim
In the alternative, we also agree with the Agency's finding that Complainant failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission has generally held that complaints involving other administrative proceedings, including those involving the OWCP and its related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (September 29, 1994)
Claims where the alleged discriminatory act involves intentionally submitting false or inaccurate information in the processing of an OWCP claim are not actionable because they pertain to the merits of the workers' compensation claim See, e.g., Hogan, supra. (accepting a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received); Schneider v. U.S. 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). We have also previously found that a complainant who was not approved for medical treatment despite receiving DOL approval was found not to state a claim within the purview of EEOC regulations. See Dye v. United States Postal Service, EEOC Appeal No. 01A30060 (February 6, 2003) (stating that the proper forum to pursue the matter was with the Department of Labor, Office of Workers' Compensation Programs, and not with the Commission). The Commission's rejection of such claims includes cases like this one; where the is based on the Agency's actions mishandling benefit claims)
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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. 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.
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 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.
2 On Appeal, Complainant disputed some dates in the Agency's decision. All dates are based on Complainant's Formal Complaint and the record; any changes will not impact the outcome of our Decision.
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