0120162628
01-24-2017
Irish M.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irish M.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120162628
Agency No. 9R1M16051
DECISION
Complainant timely appealed to this Commission from the Agency's July 11, 2016 dismissal of 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 an Aircraft Mechanic (WG-10) in the 560th Air Force Maintenance Squadron at Robins Air Force Base located in Warner Robins, Georgia.
On or around June 9, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), race (African-American) and disability (physical and mental - bilateral arm nerve damage, root nerve damage to cervical spine and Post Traumatic Stress Disorder ("PTSD")) when:
1. On January 16, 2015, her first line supervisor ("S1"), an Aircraft Overhaul Supervisor, denied her a continuation of pay ("COP") and denied her the CA-7 form to claim wage loss compensation after the COP period;
2. On January 21, 2015, S1 requested that she commit fraud by telling Occupational Medicine Services ("OMS") that she was injured in the tank instead of while removing the wing from a C-120 aircraft as a result of her team following improper procedures;
3. On January 22, 2015, S1 denied her reasonable accommodations when he required her to report to work while she was under medication and on driving restrictions;
4. On or about January 27, 2015, and as recently as March 14, 2016, her management chain (the Safety and Occupational Health Specialist ("S3") and the Chief of Safety ("S4")) refused to provide her with a copy of the "Supervisor's Mishap Report," with complete information, including signatures, in order for her to secure workman's compensation benefits and appropriate medical care;
5. From January 27, 2015, through April 22, 2015, her repeated requests for CA-1 and CA-17 forms, which were necessary to secure rehabilitation, were denied and she was purposefully misinformed as to the correct procedures that should have been followed after a work place injury;
6. On January 30, 2015, the Human Resources Supervisor ("H1") strong-armed and manipulated her into signing a fraudulent CA-1 form dated January 27, 2015, but did not submit the CA-1 form until February 25, 2015;
7. On February 6, 2015, S1 denied her reasonable accommodation when he required her to move from an office on the first floor to the second floor, even though she was taking muscle relaxants and was restricted from climbing stairs;
8. On May 8, 2015, S1 denied her reasonable accommodation due to her light duty restrictions when he stated that due to her condition, it was mandatory she worked 10 hours a day, which contributed to her injuries because it did not give her a chance to heal;
9. On or about January 25, 2016, she became aware that management deliberately withheld information that would ensure her speedy recovery by not informing her that she could file a workers' compensation claim;
10. On January 25, 2016, she became aware that the initial incident report documenting her January 15, 2015 on the job injury did not contain an accurate description of the incident and her injuries;
11. On or about February 18, 2016, she became aware she was misinformed by H1 that she should have completed items 1-15 of the CA-1 Form and not H1, which delayed her medical care because he minimized the severity of the accident and her injuries;
12. On February 18, 2016, she became aware that H1 submitted a fraudulent CA-1 form to Worker's Compensation, without her signature on January 27, 2016;
13. On February 24, 2016, she was administered an injection by her treating Occupational Medical Physician ("OMP") at the Agency's on site clinic without undergoing an x-ray or Magnetic Resonance Imaging ("MRI") beforehand, causing her further injury; and
14. On March 3, 2016, she was administered an injection by the same OMP without an x-ray or MRI and without the proper amount of time lapse between previous injections, also resulting in further injury.
Complainant's allegations are all related to an incident on January 15, 2015, when her unit was assigned to remove a wing from a C-130 aircraft. According to Complainant, the wing to be removed was 45 feet and weighed over 5000 pounds. In order to remove the wing, Complainant and her coworkers installed a sling, which they positioned around the wing by using guide ropes. Once the sling was believed to be properly in place, several of Complainant's coworkers unbolted the wing and began to detach it from the aircraft while she and another coworker held the guide ropes from below. Complainant recalls hearing a loud "pop" or "snap" then her arms were suddenly jerked over her head, fully extended, and she was lifted off the ground. The wing had fallen or shifted downward, forcing Complainant upward, as though her body was a "counterweight." The resulting injury caused the physical and mental disabilities named among the bases of discrimination in the instant complaint.
Complainant sought treatment at the medical facility on base on January 21, 2015, when she began experiencing severe pain and stiffness in her back, neck, and shoulders. An Agency physician prescribed muscle relaxants and referred her to physical therapy, which she required throughout the relevant time frame. He also issued a list of restrictions for Complainant to provide to S1, so that she could be placed on "light duty" as an accommodation for her disabilities resulting from the injury. The restrictions included "no climbing ladders, driving vehicles or use of motorized equipment, and no strenuous use or reaching with either of her arms." Complainant and S1 discussed the restrictions, and since Complainant's injuries were incurred on the job, they also discussed compensation for medical treatment and continuation of pay through the Office of Workers Compensation Programs ("OWCP") at the Department of Labor. S1 completed an incident report describing the circumstances of Complainant's January 15, 2015 on the job injury, on which the OWCP could base its payments.
However, Complainant's injury turned out to be much more severe (and costly) than initially diagnosed. In February 2015, Complainant received trigger point injections on her side to treat ongoing muscle spasms. In March 2015, Complainant followed up with the Agency physician and multiple specialists, received x-rays, was fitted for a back brace, received another trigger point injection, and was diagnosed with an "overuse injury of trapezius muscles, with symptoms of bilateral ulnar neuropathy left greater than right." In April 2015, Complainant underwent a nerve conduction study and received a formal diagnosis of ulnar neuropathy attributable to her on the job injury, as well as a mild subclinical diagnosis of carpal tunnel syndrome of both wrists. Complainant's "light duty" work restrictions were modified to include "no kneeling or crawling, no awkward use of left/right hands, no gripping use of right hand, no strenuous use of left hand, no overhead reach with the left hand, no overhead lift, no push/pull/carry over 20 pounds and no driving government vehicles or use of motorized equipment required for the duties of an aircraft mechanic while taking sedating medication." Among other things, Complainant underwent two surgical procedures, one on her left elbow in August 2015, and the other on her right wrist in January 2016 to treat her ulnar neuropathy. With the exception of the recovery times for her two surgeries, and the trigger point injections, which required additional physical restrictions, Complainant was continuously under the "light duty" restrictions as defined by her physician throughout the relative time frame.
Complainant ran into difficulty obtaining reimbursement from OWCP for her extensive and ongoing medical expenses. She made multiple requests for the original January 21, 2015 incident report submitted by S1, in order to ensure that the description of the circumstances of her injury reflected its severity. According to the report, which Complainant first viewed on January 26, 2016, "[Complainant] was holding the guide rope when the wing shifted causing her arms to be jerked. She is still sore today from the incident." By contrast, Complainant recalls that when she was injured, the wing not only shifted, but fell to the ground and was damaged.2 Complainant alleges that the Agency intentionally left this information out of the report cover up the damage done to the aircraft wing, and by doing so did not provide sufficient information to obtain adequate care for her injuries through OWCP. Complainant further alleges that the incident report caused her to suspect that S1 and other Agency officials' actions related to her on the job injury were also motivated by discrimination, at which point she raised the instant complaint.
The Agency dismissed Claims 1, 2, 4, 5, 6, 9, 10, 11, 12, 13, and 14 in accordance with 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The Agency dismissed Claims 3, 7, and 8, and alternately dismissed Claims 1, 2, 5, and 6 as untimely pursuant to 29 C.F.R. 1614.107(a)(2) and 29 C.F.R. 1614.105.
ANALYSIS AND FINDINGS
The regulation set forth at 29 CF.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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr.21, 1994).
Collateral Attack: Claims 1, 2, 4, 5, 6, 9, 10, 11 and 12
This Commission has generally held that complaints involving other administrative proceedings, including those involving the Office of Workers Compensation Programs ("OWCP") and its related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). This includes allegations that an agency official discriminated against a complainant by submitting false information on their OWCP paperwork. See Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001). The reason being that if the Commission were to accept and review a claim that alleged that agency officials submitted misleading or inaccurate statements to OWCP, the Commission would necessarily have to determine what workers' compensation benefits the complainant would likely have received, which is an administrative process of OWCP. See Hogan, supra. Likewise, we have found allegations that the agency officials intentionally delayed the processing of OWCP paperwork also fails to state a claim. See Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002).
Claims 1, 4, 5, 9, 11, and 12 all allege various instances where agency officials intentionally delayed Complainant's ability to obtain OWCP benefits by withholding information or paperwork, and therefore cannot be raised with this Commission. Moreover, allegations such as those in Claims 2, 6, and 10, describing how Agency officials allegedly engaged in fraud related to Complainant's OWCP submissions, have also been determined outside the purview of this Commission. On Appeal, Complainant does not dispute that Claims 1, 2, 4, 5, 6, 10, 9, 11, and 12 are all OWCP related, but asserts that they "show a pattern of discriminatory acts that were done in an attempt to conceal facts about [her injury] and the wing damage [as a result of] the incident [on January 5, 2015]." We find Complainant is raising a variation of her earlier argument that Agency employees mishandled her OWCP claim, a collateral attack on the OWCP process. As they fail to state a claim, we find it unnecessary to examine the Agency's alternate grounds for dismissing claims 1, 2, 5, and 6.
As they concern Complainant's OWCP claim, the proper forum to pursue the allegations in Claims 1, 2, 4, 5, 6, 9, 10, 11, and 12 is with the Department of Labor.
Claims 13 and 14: Improper Forum
Claims 13 and 14, fail to state a claim because Complainant does not establish her status as an "aggrieved employee." See Diaz, supra. The alleged discriminatory actions describe an Agency physician improperly administering medical treatment. We see no indication that Complainant was acting in her capacity as an Agency employee within the course of her employment when she was receiving these treatments.
The Agency erred when it found Claims 13 and 14 constituted another collateral attack on the OWCP process. In its response to Complainant's appeal, the Agency misapplied our analysis in Murray v. Department of Veterans Affairs, EEOC Appeal No. 0120103616 (January 10, 2011). Specifically, the Agency identified the allegations in Claims 13 and 14 as "actions which occurred during the OWCP process" citing our explanation that "[t]he proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process was within that forum itself." Murry, at 4. The "actions" referenced in Murry, concerned allegations that management mishandled OWCP paperwork, which we found to be a collateral attack on the OWCP process (as with our analysis of Claims 1, 2, 4, 5, 6, 10, 9, 11, and 12 in the instant case). The "actions" described in Claims 13 and 14 were not conducted by management, and concern medical treatment of an injury subject to an OWCP claim, not the administrative processing of OWCP claims themselves.
We find Claims 13 and 14 can be more accurately characterized as allegations of medical malpractice. The proper forum for a medical malpractice claim is Civil Court.
Untimely EEO Contact: Claims 3, 7, and 8
In relevant part, C.F.R. �1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under 29 C.F.R. �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
Our regulations allow for an agency or the Commission to extend the time limit if the complainant can establish that he or she was not aware of the time limit, 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 or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission. See 29 C.F.R. �1614.105(a)(2).
Complainant argues that she only became aware that the alleged actions constituted discrimination on or about January 25, 2016, and that based on this date, her allegations are timely. However, Claims 3, 7, and 8 all arise from S1's failure to follow Complainant's disability-related medical restrictions. Since Complainant provided S1 with the restrictions, she was aware that he was on notice of her status as an individual with a disability and the nature of the accommodations she required. So Complainant would have been aware of the alleged discriminatory act, failure to provide accommodations, when it occurred. The alleged discriminatory actions in Claims 3, 7, and 8 occurred on January 21, February 6, and May 8, 2015 respectively, yet Complainant did not initiate contact with an EEO Counselor until February 10, 2016, well beyond the 45 day limitation period.
Alternately, Complainant asks that we excuse the delay(s) because during the relevant time frames, she was experiencing "extreme emotional distress and constant pain and medical procedures." We have long held that a complainant's failure to meet a filing deadline will be excused for incapacitation only if the complainant establishes that he or she was so physically or emotionally incapacitated that she was unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). A claim of incapacitation must be supported by medical evidence of incapacity during the filing window. See Dos Santos v. Dep't of Veterans Affairs, EEOC Appeal No. 01992476 (Jan. 3, 2001), citing Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992) We appreciate the profound impact Complainant's injuries have had on her life, but the record does not support waiving the filing deadline requirement. Throughout the relevant time frames, Complainant was capable of pursuing her OWCP claim, working (with physical restrictions), and scheduling and attending medical appointments. We find Complainant was not so incapacitated that she could not timely contact an EEO Counselor.
Complainant has therefore failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for extending the filing period for the alleged discrimination in Claims 3, 7, and 8.
The Agency has an ongoing duty to provide reasonable accommodations
Claims 3, 7, and 8 all allege a denial of reasonable accommodations, which, unlike Complainant's OWCP complaints, falls within the Commission's jurisdiction. Our regulations provide that Agencies are required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. �� 1630.2 (o) and (p); see also Melodee M. v. Dep't of Veterans Affairs, Appeal No. 0120142484 (Apr. 8, 2016) citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agriculture, EEOC Appeal No. 0120120400 (Dec. 3, 2015). While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Department of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015).
We remind the Agency that as an employer, it has an ongoing obligation to provide reasonable accommodations, failure to provide such accommodation constitutes a violation each time the employee needs it. As Complainant's mental and physical disabilities arise from an injury incurred while she was on the job, we also remind the Agency that its ongoing duty to provide reasonable accommodations is independent of the OWCP and its processes. See Garrett M. v. United States Postal Serv., EEOC Appeal No. 0120160081 (Jan. 14, 2016). For instance, an agency cannot use an OWCP decision on whether a position is suitable for the employee as reason not to provide the employee with a reasonable accommodation. See Germain v. United States Postal Serv., EEOC Request No. 0120088777 (Dec. 3, 2008); see also Gonzalez v. United States Postal Serv., EEOC Appeal No. 0120082632 (Nov. 27, 2009).
Although Claims 3, 7, and 8 must be dismissed as untimely, Complainant may use them as relevant background information should she need to raise a timely EEO complaint alleging denial of reasonable accommodations.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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.
Carlton M. Hadden, Director
Office of Federal Operations
January 24, 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 In its response brief regarding the instant appeal, the Agency provides that the wing "shifted" but does not speak to whether the wing was damaged or the extent of the "shift."
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