0120160081
01-14-2016
Garrett M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Garrett M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120160081
Agency No. 1K-271-0023-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 24, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 this complaint, Complainant worked as a Manager Distribution Operations at the Agency's Processing and Distribution Center in Greensboro, North Carolina.
Complainant indicated that from October 27, 2014 through April 2, 2015 management had failed to provide him with a modified job assignment within his medical restrictions which are related to an on-the-job injury. Believing he had been subjected to discrimination, on April 20, 2015, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, on August 4, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Indian),2 sex (male), color (Brown), disability, and age (59) when the Agency has engaged in an ongoing pattern and practice of discrimination and hostile work environment. In support of his claim of harassment, Complainant indicated that the Agency failed to provide him with a reasonable accommodation on and continuing since October 27, 2014.
The Agency defined the complaint as a claim of discrimination when Complainant's request for a reasonable accommodation in October 2014 was denied. The Agency noted that Complainant contacted the EEO Counselor in April 2015. In defining the complaint as such, the Agency determined that Complainant failed to contact the EEO Counselor within 45 calendar days and dismissed the matter pursuant to 29 C.F.R. �1614.107(a)(2). Furthermore, the Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency held that Complainant alleged a collateral attack against the Office of Worker's Compensation Programs (OWCP). As such, the Agency also dismissed the complaint for failure to state a claim.
This appeal followed. On appeal, Complainant indicated that he had initially requested a reasonable accommodation in October 2014. However, the Agency failed to provide him with the needed accommodation. The Agency formally denied his request in April 2015. As such, Complainant argued that his contact was made in a timely manner. Further, Complainant asserted that he alleged a claim of denial of reasonable accommodation, not a collateral attack on the OWCP process. Therefore, Complainant also requested that the Commission reject the Agency's dismissal of the complaint for failure to state a claim. The Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
Claim Alleged
As an initial matter, we find that the Agency improperly defined the claim alleged in the instant complaint. Upon review of the record, we determine that Complainant alleged that he was subjected to discrimination when the Agency failed to provide him with a reasonable accommodation. Complainant indicated that he first requested the reasonable accommodation in October 2014. Complainant's need for the accommodation has continued since October 2014. Complainant asserted that the Agency formally denied his reasonable accommodation request in April 2015. Therefore, we conclude that Complainant has alleged discrimination on the basis of race, sex, age, color, and disability when Complainant's requested reasonable accommodation was denied in April 2015. We shall review the Agency's dismissal of the complaint based on this claim of discrimination.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
As noted above, Complainant alleged that he began his request for a reasonable accommodation in October 2014. EEOC's Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that "because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it." Further, the Commission has specifically held that the denial of reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. See Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999); Peacock v. U.S. Postal Serv., EEOC Appeal No. 0120082372 (July 31, 2008). Complainant asserted that he was formally denied the request in April 2015. That same month, Complainant contacted the EEO Counselor. As such, the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was not appropriate.
Failure to State a Claim
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. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Agency asserted that Complainant has alleged a collateral attack on the OWCP process. We disagree. Regardless of OWCP, the Agency has a duty to provide reasonable accommodation which is ongoing. We note that the Commission has stated that the Agency cannot use an OWCP decision as reason for not providing reasonable accommodation. Germain v. U.S. Postal Serv., EEOC Appeal No. 0120088777 (Dec. 3, 2008). In the instant matter, Complainant has alleged that the Agency has failed to provide him with a reasonable accommodation, not a denial of OWCP. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (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 (M0815)
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, 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 (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
January 14, 2016
__________________
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 Although complainant also alleged discrimination on the basis of race (Indian), the Commission notes that it considers the term "Indian" to be a national origin rather than a racial group.
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