0120150074
02-13-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120150074
Agency No. 4C-370-0100-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 10, 2014 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 City Carrier at the Agency's Germantown Station facility in Germantown, Tennessee.
On August 13, 2014 Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when:
1. The Agency changed Complainant's start time from 7:30AM to 8:00AM, while other similarly situated employees' schedules were unchanged.
2. Because she has a reasonable accommodation of working no more than eight hours a day, the Agency requires her to submit medical documentation every 30 days to harass her and/or maintain the accommodation.1
The Agency dismissed claim 1 for failure to state a claim because Complainant was not aggrieved by the Agency changing her start time from 7:30AM to 8:00AM. The Agency explained that a minor change in an employee's starting time fails to state a claim and does not render an employee aggrieved.
Additionally, the Agency dismissed claim 1 for failure to comply with the applicable time limits of EEO Counselor contact within 45 days of the date of the matter alleged to be discriminatory. The Agency acknowledged that though Complainant contacted the EEO Counselor on June 23, 2014, Complainant did not reference a date when the alleged act of discrimination occurred. Instead, the Agency reviewed Complainant's clock rings from the Time and Attendance Employee Everything Report, which indicated Complainant started reporting to duty at 8:00AM on April 8, 2014. Thus, the Agency calculated 76 days between the date when Complainant's start time was changed to 8:00AM and the date when Complainant first contacted an EEO Counselor.
The Agency dismissed the second claim which it defined as regarding recertification of Complainant's FMLA condition every 30 days for failure to state a claim. The Agency found that complaints involving FMLA issues are consistently dismissed as collateral attacks on matters within the jurisdiction of the Department of Labor.
On appeal, Complainant states that on April 25, 2014 her supervisors instructed her to report to work at 8:00AM instead of 7:30AM. Complainant writes that she is currently under FMLA for two chronic conditions which require her to certify once a year, submits an Agency letter indicating she needs to recertify annually for FMLA, and adds she has no restrictions which require her to go to the doctor every 30 days. Complainant compares herself to coworkers with FMLA-protected conditions who start work at 7:30AM and believes the Agency has treated her differently than her coworkers.
On appeal, Complainant alleges that her start time was changed by 30 minutes, and she was subjected to an investigative interview in October 2014 because she did not complete delivery in time, which she attributed to starting 30 minutes later. Complainant stated that she brought back the first class mail to the office because her medical documentation states she must work 8 hour days.2
In opposition to Complainant's appeal, the Agency argues that the final agency decision should be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
Here, Complainant contends that the Agency changed her schedule on April 25, 2014, which was 59 days before she contacted the EEO counselor on June 23, 2014. The Commission finds that as of April 25, 2014, the Agency changed Complainant's start time. Thus, Complainant exceeded the 45-day regulatory time limit. Because we affirm the Agency's dismissal on this issue based on untimeliness, we need not address whether it states a claim.
Complainant's second allegation, as redefined herein, is that because she has the reasonable accommodation of working no more than eight hours a day, the Agency requires her to submit medical documentation every 30 days to harass her and/or maintain this accommodation.
Harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of Complainant's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). We find that requiring Complainant to submit medical documentation every 30 days sufficiently alters the conditions of Complainant's employment. Thus, this allegation states a claim of harassment. Further, the Rehabilitation Act incorporates by reference the provisions of the Americans with Disabilities Act (ADA) concerning medical inquiries and examinations. The ADA may make medical inquiries only when it can show that the inquiry is "job-related and consistent with business necessity." In this case, because Complainant's allegation challenges whether monthly medical inquiries are job related and consistent with business necessity, it states a claim of discrimination. Complainant v. Department of Energy, EEOC Appeal No. 0120131126 (Dec. 19, 2013).
Even if Complainant were alleging that the Agency required her to submit medical documentation every 30 days to maintain her FMLA status, it would state a claim. See Williams v. United States Postal Service, Appeal No. 0120130290 (March 7, 2013)(where, inter alia, complainant's allegation of Agency repeatedly asking her for information about her FMLA-approved medication stated a claim harassment). This claim is not a collateral attack on another proceeding.
Accordingly, the Commission AFFIRMS the Agency's dismissal of Complainant's first claim for untimely EEO counselor contact. The Commission REVERSES the Agency's dismissal of Complainant's second claim for failure to state a claim and REMANDS the matter to the Agency for processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process issue 2, as redefined 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 (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 (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 (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
February 13, 2015
__________________
Date
1 The Commission redefined Claim 2 because the Agency misdefined the issue as: "Management required you [Complainant] to recertify your Family Medical Leave Act (FMLA) condition every 30 days."
2 On appeal, Complainant raises that she was subject to an investigative interview in October 2014 for failing to deliver first-class mail, and contends that the Agency retaliated against two of her coworkers who provided statements for her case by changing their start times from 8:00 AM on October 25, 2014. Complainant first raised these matters on appeal. Therefore, as new issues, they are not before us.
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0120150074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150074