0120101950
09-10-2010
Hee S. Yoo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Hee S. Yoo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120101950
Agency No. 1A072004309
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 11, 2010, 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
The record indicated that Complainant had been a Mail Processing Clerk with the Agency's Dominick V. Daniels Processing and Distribution Center in Kearney, New Jersey. In June 2008, Complainant was in an altercation with an employee over the shortage of special ergonomic chairs. At that point, Complainant's badge was taken from her and she believed her employment was terminated. Complainant was absent from the workplace from June 2008. In January 2009, the team leader for the Agency's National Reassessment Program (NRP) began to inquire about Complainant's absence. In January 2009, Complainant was offered a modified assignment to be effective February 2009. In March 2009, Complainant met with the Agency's District Reasonable Accommodation Committee. In May 2009, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding the events from June 2008 to May 2009.
Complainant noted that in June 2009, she had not been able to access her sick leave or annual leave. She also received an assignment in July 2009 which was formally offered to her in August 2009. Complainant responded to the assignment indicating that it was not within her medical restrictions. Believing that the most recent events were discriminatory, Complainant contacted the EEO Counselor on August 3, 2009. When the matter could not be resolved informally, Complainant filed a formal complaint on September 5, 2009.
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Korean), disability (bi-lateral carpal tunnel syndrome, brachia radiculitis, cervical radiculitis), and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when:
1. Since June 17, 2008, Complainant has been denied reasonable accommodation/ limited duty employment, thus denying wages and benefits;
2. Since June 19, 2009, Complainant has been denied accumulated sick and annual leave hours;
3. Since June 17, 2008, Complainant has been denied a PS Form 50 and SF which has affected her ability to apply for unemployment benefits;
4. On July 24, 2009, Complainant was assigned a Mail Processing position outside her medical restrictions; and
5. On August 26, 2009, Complainant was offered a modified assignment beyond her medical restrictions.
The Agency issued a letter accepting claims (2), (4) and (5) for investigation. The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the same matter with the MSPB. The Agency also dismissed claim (3), pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that event in claim (3) occurred in June 2008 and Complainant did not contact the EEO Counselor until August 2009, well beyond the 45 day time limit.
The Agency investigated claims (2), (4), and (5). Following the investigation, the Agency issued its final decision dismissing the complaint. The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(4) noting that Complainant filed an appeal with the MSPB in May 2009 which encompassed the denial of accumulated sick and annual leave. The Agency noted that claims (4) and (5) pertain to Complainant's offer of a modified assignment based on her claim with the Office of Workers' Compensation Programs (OWCP). As such the Agency dismissed claims (4) and (5) pursuant to 29 C.F.R. � 1614.107(a)(1) as a collateral attack on her OWCP claim.
This appeal followed. We note that Complainant only appealed the dismissal of claims (2), (4), and (5). As such we will only review the Agency's final decision regarding those claims. Complainant asserted that the appeal with MSPB related to her perceived termination in June 2008, not the issue of her sick and annual leave. Further, as to claims (4) and (5), Complainant indicated that she was provided with an assignment which exceeded her medical limitations. As such, Complainant was alleging a denial of reasonable accommodation.
ANALYSIS AND FINDINGS
The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(4). A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that the complainant has elected to pursue the non - EEO process.
The Commission notes that the MSPB issued an initial decision on Complainant's claim that the Agency violated her restoration-to-duty rights when she was not permitted to work from June 2008 through the date of the hearing before the MSPB. We note that the MSPB found in favor of Complainant and ordered that the Agency restore Complainant to her modified limited duty position retroactive to June 17, 2008, with back pay and benefits which would include sick and annual leave. We note that the issue of the accumulation of leave from June 2008 to the present was related to the Complainant's claim that was brought before the MSPB. The Initial Decision by the MSPB addressed the cause of Complainant's leave issue and awarded Complainant benefits that would reinstate the leave she should have received since June 2008. As such, we find that claim (2) was raised with the MSPB and that this matter has been resolved. Accordingly, we find that the Agency's dismissal of claim (2) was appropriate.
As for claims (4) and (5), as an initial matter, we find that they should not have been listed as two separate claims. The record indicates that, in these "claims," Complainant asserted that she was denied a reasonable accommodation when she was offered a modified assignment beyond her medical restrictions. The Agency dismissed this claim of denial of reasonable accommodation pursuant to 29 C.F.R. � 1614.107(a)(1).
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. Upon review of the record, we find that the Agency's dismissal of this claim is not appropriate. As noted above, Complainant indicated that in August 2009, she was offered a position which was beyond her physical limitations and, as a result, denied a reasonable accommodation. The Agency makes the assertion that Complainant has alleged a collateral attack on her OWCP claim. We find no support for such an assertion. The record clearly indicated that Complainant has asserted a claim of denial of reasonable accommodation. As such, we find that Complainant has stated a viable claim of discrimination against the Agency. Therefore, we determine that the Agency's dismissal was not appropriate.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's final decision dismissing claim (2). However, the Commission also REVERSES the Agency's final decision dismissing claims (4) and (5) as identified by the Agency and REMANDS the complaint for further processing as ORDERED below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall re-issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within thirty (30) 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
September 10, 2010
__________________
Date
2
0120101950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120101950