0120161761
07-29-2016
Celeste P.,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
Celeste P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161761
Agency No. 4G752009916
DECISION
Complainant filed a timely appeal to this Commission from the Agency's April 14, 2016, 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 Rural Carrier at the Agency's North Texas Processing and Distribution Center in Coppell, Texas.
On April 4, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (hands and wrists) and age (over 40) when:
she became aware, on January 6, 2016, that she had not been reimbursed for health and life insurance premiums that she had been incorrectly charged for between 2010 and 2013 or 2014.
Complainant incurred an on-the-job injury to her hands and wrists and was placed on leave without pay ("LWOP") for a period of over one year sometime between 2010 and 2013. Complainant collected workers' compensation payments for her medical condition from the Office of Workers' Compensation Programs ("OWCP") in the Department of Labor. Like paychecks, these payments deducted premiums for employee benefits, including health and life insurance. The Agency's employees paid a lower rate for health insurance than the standard federal rate, and did not pay life insurance premiums. However, the deductions in OWCP payments reflected Agency rates for the first year of payment only. For injured employees on LWOP for over a year, such as Complainant, the health premium deductions increased to reflect the standard federal amount and basic life insurance was also deducted, resulting in an overpayment.
In 2013, the Agency offered Complainant a position within her medical restrictions as a member of its new Sales Retention Team ("SRT"). Back at work, Complainant's benefit deductions once again reflected the Agency rate. Complainant determined that she qualified for the Health Benefits Refund Program which was specifically "designed to reimburse injured employees for an over-deduction of health benefits premiums by the OWCP," under 525.132 of the Agency's Employee and Labor Relations Manual ("ELM"). The Agency's Health Resource Management District level offices were to process and issue quarterly reimbursements. After trying unsuccessfully to obtain her reimbursement, Complainant filed a grievance to recover the overpayments which culminated in a Step 2 Decision issued in November 2014. In both the grievance and in the instant complaint, the Agency stated that it could not access the necessary information to determine eligibility and calculate reimbursements because the OWCP had suspended the Agency's access to the Federal Employees Compensation Act ("FECA") data system.
Although the Agency was ordered in the 2014 Grievance to process Complainant's health benefits refund manually, Complainant claims she had not been reimbursed as of the filing of her complaint. Complainant claims that in violation of its own Health Benefits Refund Program, the Agency (as opposed to OWCP) has the excess money from her overpayments, and is capable of issuing reimbursement, but refuses to do so. She now raises the same instances of nonpayment in the instant complaint, although she alleges she only "became aware" of the nonpayment in January of 2016.
The Agency dismissed Complainant's complaint as untimely, pursuant to 29 C.F.R. � 1614.107(a)(2), and for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, 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. Under �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.
Complainant argues that her complaint is timely because she contacted an EEO Counselor the day after she "became aware" of the alleged discriminatory act - the nonpayment of reimbursements, which occurred over two years earlier. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb, 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. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (April 19, 2012)) Here, reasonable suspicion existed well over 45 days prior to Complainant's initial EEO contact in January 2016. Complainant reasonably should have known of the alleged discriminatory act no later than 2013, when, among other things, she learned that her reimbursement requests were not fulfilled. Complainant had actual knowledge of the alleged discriminatory act no later than 2014, when she filed a grievance to recover the same unpaid reimbursements that are at issue in the instant complaint.
On appeal, Complainant fails to explain why she took over two years to discover the alleged discriminatory act. Instead, she appears to argue that we should accept her complaint as timely because she participated in dispute resolution with the Agency prior to filing her complaint. She also argues that the Agency's alleged discriminatory actions amount to fraud. Neither argument warrants an extension of the time limitation. We also note that the proper venue to raise an allegation of fraud is through the Office of the Inspector General ("OIG").
As this complaint is untimely under EEOC Regulation 29 C.F.R. � 1614.107(a)(2), we decline to review the Agency's alternate grounds for dismissal, failure to state a claim under EEOC Regulation 29 CF.R. � 1614.107(a)(1).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 (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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 29, 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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