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prior to February 2003, because in January 2003, the agency rescinded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