0120082529
11-07-2008
Beatrice Gary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beatrice Gary,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082529
Agency No. 4F-900-0174-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 21, 2008, 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.
On February 5, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful. Subsequently,
complainant filed the instant formal complaint on March 29, 2008.
Therein, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior EEO activity when:
(1) from June 2007 to January 2008, she had not been accommodated in
regards to: on or around June 21, 2007, she was presented with a temporary
limited duty job offer which violated her medical restrictions, on or
around November 19, 2007, she was presented with a temporary limited
job offer which violated her medical restrictions, and during January
2008, she was presented with a modified limited duty job offer(s) which
violated her medical restrictions; and
(2) on or around December 7, 2007, the Officer-in-Charge refused to sign
complainant's PS Form 3971 and directed her to bring it to the Injury
Compensation office instead.1
In its April 21, 2008 final decision, the agency dismissed claims (1)
and (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Regarding claim (1), the agency stated that the alleged
incidents constituted a collateral attack on the Office of Workers'
Compensation Programs (OWCP) process. Regarding claim (2), the agency
determined that complainant failed to demonstrate that she suffered harm
to a term, condition or privilege of her employment.
The agency also dismissed portion claim (1) concerning the June 21,
2007 and November 19, 2007 incidents and claim (2) for raising the same
claim that is pending before or has been decided by the agency or the
Commission, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the
agency stated that complainant raised the same claims in two prior EEO
complaints, identified as Agency Nos. 4F-900-0211-07 and 4F-900-0096-08.
Furthermore, the agency dismissed portion of claim 1 concerning the
June 21, 2007 and November 19, 2007 incidents and claim (2) on the
alternative grounds of untimely EEO Counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2). The agency determined that complainant's
initial EEO Counselor contact was on February 5, 2008, was beyond the
45-day limitation period.
Claim (1)
Pursuant to EEOC's regulations, an agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
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. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
The agency dismissed claims (1) for failure to state a claim, finding
it constituted a collateral attack on the Department of Labor's Office
of Worker's Compensation Program (OWCP) process. In this situation,
complainant has two sets of legal rights. Her rights under the OWCP
process may entitle her to certain kinds of limited duty job offers,
and any challenge she has concerning the application of those rights are
properly directed to the OWCP. However, complainant is also asserting
a violation of the Rehabilitation Act's requirement that the agency
provide reasonable accommodation to individuals with disabilities.
She is asserting this claim based on her alleged disability rather
than her status as an employee with an accepted OWCP claim. We note,
for example, that complainant alleged that the Officer-in-Charge and the
Injury Compensation Department "are trying to force me out of the Postal
Service because of my disability." She also asserts that her supervisor
"willfully worked [her] outside of [her] restrictions on a daily basis."
Therefore, to the extent complainant is alleging a violation of the
agency's ongoing duty to provide her with reasonable accommodation under
the Rehabilitation Act, we find she has stated a viable claim that can be
processed in the EEO process. Therefore, the dismissal of this claim was
improper and it will be remanded to the agency for further processing.
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
In the instant case, complainant raises the same claim as set forth in
Agency Case No. 4F-900-0096-08. The record contains a copy of a final
agency decision for Agency Case No. 4F-900-0096-08 dated January 29, 2008.
Therein, the agency framed the claim in Agency Case No. 4F-900-0096-08
as whether complainant was discriminated against on the bases of
race, disability and in reprisal for prior EEO activity when "on or
around December 7, 2007, the Officer in Charge (OIC) refused to sign
Complainant's PS Form 3971, and directed Complainant to bring it to the
Injury Compensation office instead."
We determine that the record supports a finding that claim (2) is merely
an elaboration of the matters raised in Agency Case No. 4F-900-0096-08.
The agency properly dismissed claim (2) for stating the same claim in
a prior EEO complaint.
Because we affirm the dismissal of claim (2) for the reasons stated
herein, it is unnecessary to address the agency's alternative grounds
for dismissal (i.e., failure to state a claim and untimely EEO Counselor
contact).
Accordingly, the agency's final decision dismissing claim (1) is REVERSED
and the claim is REMANDED to the agency for processing pursuant to the
following Order. The dismissal of claim (2) was proper and is AFFIRMED.
ORDER (E0408)
The agency is ordered to process the remanded claim (denial of reasonable
accommodation) 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
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 (K0408)
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 (M0408)
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 (T0408)
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 (Z0408)
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:
______________________________ November 7, 2008
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The record reflects that PS Form 3971 is a Request for or Notification
of Absence.
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0120082529
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082529