EEOC Appeal No. 0120173071
11-16-2017
Jacquetta C. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jacquetta C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120173071
Agency No. 4K-230-0125-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 6, 2017, dismissing a formal 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
During the period at issue, Complainant worked as a Rural Carrier Associate at the Agency's Aylett, Virginia Post Office.
On June 16, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discrimination based on disability and/or in reprisal for prior EEO activity when:
since on or about March 17, 2017, cleaning fluids have been used at her work location which have aggravated her medical condition.
On July 6, 2017, the Agency issued a final decision. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that the matter raised therein was a collateral attack on the Department of Labor's Office of Workers' Compensation Programs (OWCP) process. The Agency determined that because Complainant made a claim relating to an occupational disease or illness that was aggravated when she was exposed to some type of cleaning fluid used at her work location, this claim should be handled by the OWCP, and not the EEOC.
The instant appeal followed. Complainant, on appeal, argues that in February 2015, she won an EEO claim against the Postmaster for failing to provide her a reasonable accommodation for her medical condition. Complainant stated that Agency management "had prior knowledge of what products not to be used in the office in order to accommodate my disability, I ask that you please review the facts and decide to let this case continue. The facts show that [Postmaster] decided to purchase a product that she had 'repeated' knowledge would cause me to have difficulty breathing!"
In response, the Agency contends that the appeal and brief were untimely filed and the appeal should be dismissed. In the alternative, the Agency asks that we affirm its final decision.
ANALYSIS AND FINDINGS
As an initial matter, we will address the Agency's contention that the appeal was untimely filed. The Agency asserts that the July 6, 2017 final decision was delivered to Complainant's address of record on July 10, 2017, making her August 14, 2017 appeal untimely. In support of its assertions, the Agency submits a United States Postal Office "Track and Confirm" printout which indicates the final decision was delivered to "[Street], Aylett, VA 23009,"on July 10, 2017, but does not reference a specific address.
The Commission has repeatedly found that a U.S. Postal Service's Track and Confirm print-out listing only a street, state, city, and zip code without any further details of the address is not sufficient to establish actual receipt by Complainant. See Complainant v. U.S. Postal Service, EEOC Request No. 0520140487 (January 29, 2015); Complainant v. U.S. Postal Service, EEOC Appeal No. 0120140438 (March 6, 2014); Couch v. Department of Energy, EEOC Appeal No. 0120131136 (August 13, 2013); King v. U.S. Postal Service, EEOC Appeal No. 0120120457 (January 11, 2013). Accordingly, we find that Agency has not met its burden of proving untimeliness.
The instant formal complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In the formal complaint, Complainant claimed discrimination based on disability and in reprisal for prior EEO activity when she was exposed to cleaning fluid which aggravated her medical condition. The Agency determined that this matter related to Complainant's OWCP claim, and was a collateral attack on the OWCP process.
However, a fair reading of her complaint shows that Complainant is alleging that the Agency is refusing to provide her with reasonable accommodation for her disability. The Agency's duty to provide reasonable accommodation is ongoing and the Agency cannot use an OWCP decision as reason for not providing reasonable accommodation. Germain v. U.S. Postal Service, EEOC Appeal No. 0120088777 (December 3, 2008). Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below
ORDER (E1016)
The Agency is ordered to process the remanded claim (defined as a claim of ongoing failure to provide 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 claim within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
November 16, 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.
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