McKenzie L,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 2, 2020

2020002416 (E.E.O.C. Jun. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 McKenzie L,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020002416 Agency No. 4K-280-0180-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 27, 2019, dismissing a formal complaint of unlawful employment discrimination alleging violations of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a City Letter Carrier at the Kannapolis Post Office in Kannapolis, North Carolina. On November 22, 2019, Complainant filed a formal EEO complaint. As summarized by the Agency, Complainant’s claimed that the Agency discriminated against her based on her disability when: 1. since a date not specified, Complainant was not accommodated per her medical restrictions; 2. on July 19, 2019, management sent Complainant an absence inquiry letter 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. 2020002416 2 referencing denial of her Office of Workers’ Compensation Programs (OWCP) claim; and 3. management sent false information to HRSSC [Human Resources Shared Service Center] referencing Complainant’s retirement application, which delayed her retirement. In its December 27, 2019 final decision, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found claims 1 and 2 constituted a collateral attack on the Department of Labor’s OWCP process and claim 3 constituted a collateral attack on the Office of Personnel Management (“OPM”) retirement process. The instant appeal followed. On appeal, Complainant argues, through counsel, that the Agency, not OWCP, failed to provide her a reasonable accommodation. Specifically, Complainant states that she sought a reasonable accommodation from the Agency after the modified job offer she received through the OWCP process did not match with her existing medical restrictions. Complainant explains that the Agency instructed her to follow the appeals process with the Department of Labor. Complainant contends that she received a copy of the DOL-OWCP case file and discovered documentation indicating that the DOL-OWCP claims examiner noted on June 5, 2019, that new medical records received did not match the job offer and further review was required. However, Complainant contends that the Agency failed to provide DOL-OWCP a determination on this matter which resulted in termination of her disability compensation effective, June 28, 2019. Therefore, Complainant alleges that the Agency failed to provide her with a reasonable accommodation. Complainant further argues that the Agency misstated the issue in claim 3. Complainant contends that she did not claim that management “delayed” her retirement process. Rather, Complainant states that she disputes the summary provided in the EEO Counselor’s report indicating that management had corrected the 15 leave entry codes errors discovered in her disability retirement application that was submitted to OPM. ANALYSIS AND FINDINGS An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). 2020002416 3 The essence of claim 3 concerns Complainant’s discovery of allegedly inaccurate leave codes reflected on her disability retirement application that was submitted to OPM for processing and management’s failure to correct these errors. Although Complainant does not argue that these alleged errors caused a delay in processing her retirement, she explains in her formal complaint that these errors were damaging to her record. Thus, the proper forum for Complainant to have raised her challenges to actions which occurred directly within the OPM adjudicatory process concerning her retirement is within that process itself because any remedial relief available to Complainant would be through OPM. There is no remedial relief available to Complainant on this matter through the EEO complaint process. Therefore, claim 3 was correctly dismissed by the Agency. Claims 1 and 2 are related to OWCP decisions concerning Complainant’s workers’ compensation claim. To the extent Complainant is directly challenging the decisions made by OWCP, she needs to appeal through one of the three appeal process options provided to her by OWCP through the Federal Employees’ Compensation Act. However, we note that the Agency also has separate legal responsibilities under the Rehabilitation Act to accommodate its employees with disabilities, even if those disabilities are related to a medical condition compensable under workers’ compensation. Here, a fair reading of Complainant’s allegation in claim 1 is that her medical condition was not being accommodated as required by the Rehabilitation Act when she was assigned tasks in violation of her medical restrictions. With regard to claim 2, Complainant appears to be alleging the Agency was taking steps to initiate an adverse action concerning her work attendance. While she references that her absences were apparently no longer protected by OWCP, she also has a claim that her absences should have been excused as an accommodation to her disability under the Rehabilitation Act. As such, we conclude that, with both claims 1 and 2, Complainant has stated a viable claim under the Rehabilitation Act that requires investigation and further processing. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing claim 3 and REVERSE the dismissal of claims 1 and 2, and REMAND those claims for further processing pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims (claims 1 and 2) 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. 2020002416 4 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 (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. 2020002416 5 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. 2020002416 6 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 June 2, 2020 Date