Melinda R. Moore, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 19, 2004
01A34361_r (E.E.O.C. Feb. 19, 2004)

01A34361_r

02-19-2004

Melinda R. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Melinda R. Moore v. United States Postal Service

01A34361

February 19, 2004

.

Melinda R. Moore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34361

Agency No. 4K-210-0539-03

DECISION

Complainant appealed to this Commission from the agency's June 19,

2003 dismissal of her employment discrimination complaint. In her

complaint, complainant alleged discrimination on the bases of race

(African-American), disability (job-related post traumatic stress

disorder, depression, and anxiety), and reprisal for prior EEO activity

when:

From 1998 and onward, complainant's requests for a reasonable

accommodation were denied;

In December 1999, the agency and Blue Cross/Blue Shield notified

complainant that her coverage was being cancelled, but still took money

for the health insurance benefits she did not use;

Although the agency was notified of the error in complainant's health

benefits coverage in July 1999, it still did not make any adjustments;

In December 2002, complainant was given a PS Form-50 (SF-50), Notification

of Personnel Action, stating that she was retired on disability; and

Complainant was sent a SF-50 in January 2003, reinstating her employment,

and another in February 2003, stating complainant was retired on

disability.

In its final decision, the agency dismissed claims (1)-(4) for

untimely counselor contact. Specifically, the agency explained that

complainant first contacted an EEO Counselor on February 6, 2003, more

than forty-five days prior to the incidents described in claims (1)-(4).

The agency dismissed claim (5) for failure to state a claim, finding that

complainant suffered no harm from the SF-50's, because records reveal

her application for Disability Retirement was approved by the Office of

Personnel Management (OPM) on October 1, 2002. Since complainant was

retired already, the agency explained, complainant could not suffer any

harm from the agency's paperwork notifying her of such retirement.

On appeal, complainant argues that she did not contact an EEO Counselor

prior to February 2003, because in January 2003, the agency rescinded

its disability SF-50. Complainant contends that she did not have

standing to file a complaint until the agency reinstated complainant's

disability retirement in its February 2003 SF-50. Complainant argues

that her earlier claims are part of a pattern of harassment she suffered

at the hands of her supervisors. Complainant argues that she suffered

actionable harm in claim (5), because she was effectively forced into

retirement when the agency refused her reasonable accommodation requests.

The record reveals that complainant had not worked since 1998 due to

medical concerns, but remained on the agency's payroll (in leave without

pay status). In a February 7, 2001 letter to Human Resources (HR),

complainant requested a transfer from her Letter Carrier position to an

administrative position. On March 14, 2001, the HR Manager responded to

complainant's request, informing her that she could bid on a different

position within her craft, apply for a transfer out of her craft, or

apply for a vacancy through the competitive process. On June 22, 2001,

the agency provided complainant with a letter entitled �Options Letter -

Physical Inability to Perform the Duties of Your Position.� In this

letter, the agency informed complainant that the options available

to her were to transfer to a different craft, apply for disability

retirement, or resign. On a form dated August 14, 2001, complainant

requested a reassignment/transfer for �medical reasons and safety.�

Complainant later requested a permanent light-duty assignment because of

her medical condition in an August 21, 2001 letter. The agency denied

the light-duty request, informing complainant that no open light duty

assignments existed. The record contains no response to complainant's

request for a reassignment or transfer.

Complainant must raise claims of discrimination within forty-five (45)

days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency may

dismiss claims that fail to comply with this time limit. See 29 C.F.R. �

1614.107(a)(2). However, in cases involving the denial of a reasonable

accommodation, the Commission has found that the violation recurs

each day that the agency fails to provide the requested accommodation.

See Halperin v. Department of the Treasury, EEOC Appeal No. 01A05416

(August 30, 2001) (citing Harmon v. Office of Personnel Management,

EEOC Request No. 05980365 (November 4, 1999) and Mitchell v. Department

of Commerce, EEOC Appeal No. 01934120 (March 4, 1994)).

Complainant's requests for reassignments and transfers due to her medical

condition were requests for a reasonable accommodation. The agency's

failure to accommodate these requests constitute a recurring violation.

Therefore, complainant timely alleged that her requests for a reasonable

accommodation were denied in claim (1).

Claims (2)-(3), however, are not recurring violations. Complainant

should have suspected discrimination when money was charged for her

health benefits, and when the agency later failed to make requested

adjustments. See Howard v. Department of the Navy, EEOC Request

No. 05970852 (Feb. 11, 1999) (complainant must contact the EEO Counselor

when she has a �reasonable suspicion� of discrimination). Therefore,

complainant failed to timely raise claims (2)-(3), and the agency's

dismissal of these claims was proper.

In claims (4)-(5), complainant in essence claims that she was forced into

disability retirement. Complainant should contact an EEO Counselor within

forty-five days of the date her retirement becomes effective. However,

her retirement becomes effective not when OPM finds that complainant is

eligible for disability retirement, but when the agency actually makes

such retirement effective, and removes complainant from the employment

rolls. In the present case, complainant was placed on retirement,

reinstated shortly thereafter, and then returned to retirement only a

month later. The Commission finds that claims (4) and (5) are parts

of a single issue. Claims (4) and (5) should hereinafter be considered

as one claim. Complainant's EEO Counselor contact within a few days of

finally being placed on disability retirement for the second time was

timely, rendering the entire claim of complainant being forced into

retirement timely. Therefore, the agency's dismissal of claim (4)

for untimely counselor contact was improper.

The agency also dismissed the retirement issue for failure to state

a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). To state a claim,

complainant must allege present harm inflicted on a protected basis.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

As noted above, the terms of complainant's employment were affected

when the agency actually placed complainant on disability retirement.

The agency's reasoning, that its SF-50's notifying complainant of her

disability retirement were not discriminatory because OPM had already

approved complainant for retirement, address the merits of complainant's

claim. This information is immaterial to the issue of whether complainant

stated a claim. See Osborne v. Department of the Treasury, EEOC Request

No. 05960111 (July 19, 1996); Lee v. United States Postal Service,

EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United

States Postal Service, EEOC Request No. 05910642 (August 15, 1991).

Complainant's receipt of the PS-50's placing her in retirement status,

reactivating her employment, and ultimately returning her to retirement

status affect a term, condition or privilege of complainant's employment.

Therefore, complainant has stated a claim regarding the issue raised

in claims (4)-(5) (now to be considered as one claim), and the agency's

dismissal of this issue was improper.

CONCLUSION

Accordingly, the agency's dismissal of claims (1), (4), and (5) are

REVERSED, and the issues are REMANDED, as defined in this decision,

to the agency for further processing. The agency's dismissal of claims

(2) and (3) is AFFIRMED.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. 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 becomes final, 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.

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 (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. 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 (M0701)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 (T0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 19, 2004

__________________

Date