0120112755
10-14-2011
Jannetta A. Edwards, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Jannetta A. Edwards,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120112755
Agency No. 4J-630-0073-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated April 14, 2011, dismissing her complaint of
unlawful employment discrimination in violation of 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 Clerk at the Agency’s Post Office facility in Carbondale, Illinois.
The record indicated that on February 9, 2011, Complainant provided
the Agency with her Office of Workers’ Compensation Program (OWCP)
form listing her physical limitations based on her medical condition.
The form indicated among other things that Complainant was restricted from
lifting, pushing and pulling to 10 pounds. In addition, the form noted
that Complainant needed her work hours to be from 7:00 a.m. to 3:30 p.m.
On February 24, 2011, Complainant was issued a job offer which she noted
did not indicate the weight or frequency of Complainant’s physical
limitations. In addition, the offer did not provide her with work during
her requested work hours or her salary information. Then, on February
28, 2011, Complainant was provided with another modified job offer
which included her salary information. However, Complainant indicated
that the form did not provide her with her restriction information
and was not within the hours she requested as noted on the OWCP form.
Complainant was informed that if she did not accept the offer, the
Manager of Maintenance (Manager) would walk her off the workroom floor.
Believing that she was subjected to discrimination, Complainant contacted
the EEO Office on February 24, 2011. When the matter was not resolved
informally, Complainant was issued a Notice of Right to File a Formal
Complaint on March 28, 2011. On March 30, 2011, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination
on the bases of disability (cervical/lumb/thoracic) and reprisal for
prior protected EEO activity under an EEO statute that was unspecified
in the record when, the Agency would not recognize her restrictions.
Complainant indicated that the Manager continued to give her job offers
without recognizing restrictions of weight, intermittent work, or work
hours from 7:00 a.m. to 3:30 p.m. Complainant also indicated that the
Manager threatened her walk her off the workroom floor and end her tour
of duty if Complainant refused the job offer which did not provide her
with salary or restriction information. Complainant indicated that she
was given a second offer which again did not acknowledge her restrictions
and again the Manager threatened Complainant with being walked off the
workroom floor for not accepting the offer. Subsequently, Complainant’s
desk was moved next to the cancelling machine.
The Agency issued its final decision dismissing the matter on April 14,
2011. The Agency defined Complainant’s complaint as a three separate
claims of discriminations, namely:
1. On February 24, 2011 given a job offer without recognizing
Complainant's restrictions, salary or grade;
2. On February 25, 2011, Complainant was presented with another job offer
that did not acknowledge her restrictions with work hours of 7:00 am to
3:30 pm and the Manager threatened to walk her off the floor if she did
not accept her job offer; and
3. Complainant’s desk was moved.
The Agency dismissed each claim pursuant to 29 C.F.R. § 1614.107(a)(1).
As to claims (1) and (2), the Agency found that these claims constituted
collateral attacks on the OWCP process. As such, the Agency determined
that claims (1) and (2) should be dismissed for failure to state a claim.
As to claim (3), the Agency found that Complainant failed to show how
she was harmed by the move. Therefore, the Agency concluded that claim
(3) also failed to state a claim. Accordingly, the Agency dismissed
the complaint as a whole.
Complainant appealed without specific comment. The Agency asserted that
its position was presented in its final decision. Therefore, the Agency
did not provide specific comment in response to the appeal.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency failed to properly identify
Complainant’s claim of discrimination. Upon review, we determined that
Complainant asserted that the Agency’s failure to “acknowledge”
or “recognize” Complainant’s restrictions constituted a claim of
denial of reasonable accommodation. The record showed that on February
9, 2011, Complainant provided the Agency with a document requesting
work within her physical limitations. In response to Complainant’s
request, the Agency provided Complainant with a modified job offer.
Complainant believed that the first job offer dated February 24, 2011,
did not meet the needs of her restrictions for job offer listed physical
requirements such as lift, fine manipulation/simple grasp, or push/pull.
However, the job offer did not indicate how much Complainant would be
expected to do in terms of lifting, fine manipulation/simple grasping,
or pushing/pulling. Also, this position was not during the hours
Complainant had listed on her OWCP forms. In addition, Complainant
was give a second offer dated February 28, 2011,1 which provide
Complainant with her salary information. However this second offer
still lacked the amount of lifting, fine manipulation/simple grasping,
or pushing/pulling Complainant was expected to perform within the second
job offer. Complainant also believed that the offer failed to comply
with her work hour requirement which was also listed on her OWCP form.
In addition, we not that Complainant requested, as remedy for her claim
of discrimination, a work assignment within her doctor’s restrictions.
Therefore, based on the Commission’s review of the record, we find that
Complainant alleged a claim of denial of reasonable accommodation based on
the job offers dates February 24 and 28, 2011, failed to accommodate her.
In support of her claim of denial of reasonable accommodation, Complainant
indicated that she was given the offers under the threat of removal from
the workroom floor. Therefore, we find that there were two claims of
discrimination raised in Complainant’s formal complaint, namely:
a. Denial of Reasonable Accommodation and
b. The Manager moved Complainant’s desk next to the cancelling machine.
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).
As to the denial of reasonable accommodation claim, we determine
that Complainant stated a claim of discrimination. We do not find
Complainant’s claim to constitute a collateral attack on the OWCP
process. Therefore, we determine that the Agency’s dismissal of the
matter was not appropriate.
The Commission notes that the Manager indicated that Complainant
was threatened with removal from the workroom floor based on the
procedures established as part of the National Reassessment Program
(NRP). The Commission takes judicial notice here that the claims
raised in Complainant's complaint may be identical to one or more of the
claims raised in the class complaint, McConnell, et al. v. U.S. Postal
Serv. (Agency No. 4B-140-0062-06). Commission records indicate that in
2004, the Agency began the development of the National Reassessment
Process (NRP), an effort to “standardize” the procedure used to
assign work to injured-on-duty employees. In the class complaint,
McConnell claims that the Agency failed to engage in the interactive
process during the NRP in violation of the Rehabilitation Act; further,
that the Agency allegedly failed to reasonably accommodate class members
during and after the process. We find that there is insufficient evidence
within the record to determine whether the Agency's NRP was the involved
in Complainant’s claim of denial of reasonable accommodation. We
therefore cannot determine whether Complainant's claim of disability-based
discrimination falls within the McConnell class action. Therefore, we
find that the record must be supplemented with documents regarding the
job offers dated February 24 and 28, 2011. Once the record is further
developed, the Agency should determine whether Complainant's claim
of disability discrimination falls within the McConnell class action.
If the matter falls within the class action, the instant complaint should
be subsumed. If the matter is not, the complaint should be investigated
in accordance with the ORDER below.
Complainant also alleged discrimination and unlawful retaliation when her
desk was moved. We find that Complainant has alleged harm with respect
to a term, condition, or privilege of her employment with the Agency,
i.e., the location of her desk. Therefore, we find that Complainant is
an aggrieved employee, and the Agency's decision to dismiss the complaint
for failure to state a claim was improper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE 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 take the following actions:
1. Supplement the record in order to determine whether claim (a)
as defined by this decision is identical to the claims raised in the
McConnell class action. Specifically, the Agency shall include evidence
regarding the operational assessment that occurred at the Carbondale Post
Office and Complainant’s offers of modified assignment. The results
of this supplemental investigation shall be provided to the Commission's
Compliance Officer.
2. If the Agency determines that Complainant’s claim (a) alleging
denial of reasonable accommodation raises the same matter as the McConnell
class action, the Agency is ordered to subsume the instant complaint into
the McConnell class action. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 8, § III(C) (Nov. 9,
1999). The Agency shall provide Complainant with notification that the
Agency is processing his complaint as subsumed within the class action. A
copy of that notice shall also be provided to the Commission's Compliance
Officer as noted below.
3. If the Agency determines that Complainant's claim (a) as defined
by this decision is not identical to those raised in the McConnell
class, the Agency is ordered to process the remanded claim of denial
of reasonable accommodation along with claim (b) in accordance with 29
C.F.R. § 1614.108 as ordered in item 4 below.
4. The Agency is ordered to process the remanded claim (b), regarding
her desk, 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 (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 (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
October 14, 2011
__________________
Date
1 We note that the Agency’s final decision listed the date of the
second offer as February 25, 2011; however, the Commission did not find
any offer with that date. The record contained a second offer dated
February 28, 2011.
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0120112755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112755