0120120732
10-25-2012
Ruth C. Robinson-Brooks, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Ruth C. Robinson-Brooks,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120732
Agency No. 4C370003711
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 24, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and 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 Clarksville Main Post Office facility in Clarksville Tennessee.
On October 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (German) and disability (right shoulder injury) when:
1. From April 15, 2011 through June 8, 2011, Complainant was denied a reasonable accommodation by her Supervisor; and
2. She has been subjected to a hostile work environment from her Supervisor due to Complainant's accent.
The Agency characterized the claims differently, failing to recognize that Complainant was claiming a denial of reasonable accommodation for her disability under the Rehabilitation Act. Instead the Agency characterized claim 1 as alleging that "Management failed to provide Complainant with relief assistance on her route so she could attend physical therapy appointments" and claim 2 as alleging that "management doesn't take time to understand her speech." The Agency dismissed claims 1 and 2 for failure to state a claim, finding that Complainant had not been harmed by the Agency's actions. The Agency further found that the incident alleged in claim 1 was insufficiently severe or pervasive to support a claim of hostile work environment, but the Agency did not address whether the incident alleged in claim 2, whether on its own or in conjunction with claim 1, created a hostile work environment.
ANALYSIS AND FINDINGS
With regard to claim 1, we note that Complainant's formal complaint does not expressly state that Complainant's request for "reasonable accommodation" was denied. However, a fair reading of her claim makes it clear that was what she was alleging. An employee is not required to use the "magic words" when making a reasonable accommodation request. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.I. Instead, the employee or the employee's representative need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. United States Postal Service, EEOC Appeal No. 01A44720 (Feb. 24. 2006). Here, Complainant alleges that when she told management that she needed time to attend doctors' and physical therapy appointments, she was not granted sufficient time. As a result, we find that this claim should be analyzed as a denial of a request for a reasonable accommodation, which the Agency failed to do.
The Agency found that Complainant was allowed to attend her appointments and that she was therefore not harmed by the Agency's action. Such an argument, however, addresses the merits of Complainant's complaint without a proper investigation as required by the regulations. Whether or not Complainant was provided sufficient time to attend her medical appointments is irrelevant to the procedural issue of whether she has stated justiciable claims of disparate treatment under Title VII and denial of reasonable accommodation under the Rehabilitation Act. 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).
The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and menial limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). Because the Agency failed to analyze this complaint under a denial of reasonable accommodation theory, this case requires remanding to the Agency to address Complainant's arguments.
With regard to claim 2, we find that the complaint fails to state a claim under the EEOC regulations because Complainant failed to allege how she was subjected to harassment because of her accent and/or how the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Therefore, we cannot conclude that she has alleged that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
Because the Agency failed to address the matter under a denial of Reasonable Accommodation theory, we AFFIRM the Agency's Dismissal in part and REVERSE in part and REMAND the claim to the Agency for further processing.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 25, 2012
__________________
Date
2
0120120732
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120732