0120161269
03-30-2017
Alonzo L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area). Appeal No. 0120161269 Agency No. 4G-320-0008-16
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alonzo L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area).
Appeal No. 0120161269
Agency No. 4G-320-0008-16
DECISION
On March 14, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 10, 2016, dismissing his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to his complaint, Complainant worked as a Window Clerk at the Agency's Dawson Post Office in Dawson, Georgia.
On January 22, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his disability and age (51) when:
1. On October 6, 2015, the Acting Postmaster threatened not to pay him for his absence for several days in early October 2015, if he did not resubmit his medical documentation;
2. On October 13, 2015, he was forced to sign an Officer of Modified Assignment that was beyond his medical restrictions; and
3. On October 17, 2015, after he told the Acting Postmaster that he was unable to dispatch mail because the weight and activity required would violate his medical restrictions, she responded do your best without providing assistance, violating his restrictions.2
While the Agency dismissed issue 1, it inadvertently failed to provide grounds for doing so its FAD. On appeal, the Agency writes that issue 1 fails to state a claim because Complainant was not harmed - his sick leave request was later approved.
The Agency found that issue 2 failed to state a claim because it was a collateral attack on another forum's proceeding - the Office of Workers' Compensation Programs (OWCP). In support, the Agency cited a number of cases. The most relevant was Garcia v. U.S. Postal Service, EEOC Appeal No. 01A44785 (May 27, 2005) (the Commission found that the complainant's claim that the agency's Injury Compensation Office mandated a job offer that was not in compliance with the doctor or the second opinion doctor from OWCP was an impermissible collateral attack on OWCP).3 On appeal, the Agency argues that Complainant is asking the Commission to invalidate the suitability of a job offer that was approved by OWCP.
While the Agency dismissed issue 3, it inadvertently failed to provide grounds for doing so in its FAD. On appeal, the Agency writes that issue 3 fails to state a claim because Complainant was not harmed.
On appeal, Complainant argues that he does not seek to circumvent the OWCP process, rather he is trying to stop the Agency from requiring him to work beyond his medical restrictions, which constitutes a denial of reasonable accommodation of his disabilities and harassment.
ANALYSIS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim, meaning from any aggrieved employee or applicant who alleges discrimination on a protected basis. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
On issue 1, the record reflects that the initial dentist note Complainant submitted indicated he had a dental appointment on October 2, 2015, to please excuse him from work, and he may return on October 6, 2015. The Acting Postmaster denied Complainant's leave request on the ground of inadequate medical documentation. She gave him a sheet with the Agency's formal policy on what is adequate - something that explains the nature of the illness or injury sufficient to indicate that the individual was or will be unable to perform his normal duties for the period of absence. Thereafter, Complainant submitted a revised dentist note with the additional language of "[d]ue to medication the patient is taking for this procedure." After reviewing this the Agency granted Complainant's sick leave request. We find that given the circumstances of this case, Complainant was not harmed by the requirement that he provide more medical documentation and the request was not harassing in nature. Accordingly, issue 1 fails to state a claim.
We find that issue 2 states a claim. Complainant v. United States Postal Service, EEOC Appeal No. 0120140194 (May 29, 2014) (the Complainant's allegation that he was given a modified assignment job offer outside his medical restrictions stated a claim. Even if the job offer was made in conjunction with his OWCP claim, and approved by OWCP, the duty to reasonably accommodate an employee is independent from OWCP); Lux v. United States Postal Service, EEO Appeal No. 0120081629 (May 15, 2008) (claim that the Agency gave her a direct order to sign a modified assignment that violated her medical restrictions was not a collateral attack on the OWCP process and stated a claim. The Agency is responsible to reasonably accommodate an employee independent of any determination by OWCP). These decisions are more recent than any cited by the Agency for issue 2, and are more applicable.
In writing that issue 3 failed to state a claim, the Agency argued that Complainant did not relate that he was forced to work beyond his restrictions. But we find that in setting forth issue 3 in his complaint, he strongly implied he was alleging that he was required to work beyond his medical limitations, and confirms this on appeal. Issue 3 states a claim.
The FAD is MODIFIED.
ORDER
The Agency is ordered to process the remanded claims, as defined herein, 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-five (35) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and notify him of the appropriate rights within one hundred fifty-five (155) 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.
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 (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 (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. 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
March 30, 2017
__________________
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.
2 We modified some of the language in Complainant's allegations to better capture them.
3 The Agency cited another case that on the surface was more applicable - Hurlbut v. United States Postal Service, EEOC Appeal No. 0120043360 (Mar. 6, 2007) (the Commission affirmed the decision of an Administrative Judge (AJ) who found in part that the validity of a limited duty job offer that allegedly violated the complainant's medical restrictions was within the exclusive jurisdiction of OWCP, and outside the EEOC's jurisdiction). But a close reading of Hurlbut shows that the Commission did not rule on jurisdiction, rather, it found that Complainant could not prevail under any theory of discrimination because he was not a qualified individual with a disability. Footnote 5).
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