0120170092
03-02-2017
Lashawna C.,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
Lashawna C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170092
Agency No. 4K220006416
DECISION
Complainant timely appealed to this Commission from the Agency's September 13, 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 for the Agency as a City Carrier (PS-06) at Lincolnia Station in Alexandria, Virginia.
On August 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (Plantar Fasciitis; unspecified emotional disorder), and reprisal (Agency No. 4k-220-0066-15) when: 2
1. From approximately September 24, 2015, through January 8, 2016, and ongoing, she was not provided with 8 hours of work daily;
2. On January 8, 2016, she was put on emergency placement in an off-duty without pay status; and
3. On May 11, 2016, she was issued a Letter of Demand in the amount of $3766.57.
Complainant was placed on limited duty on October 22, 2015, as a result of severe pain in both feet related to years of walking to deliver mail. Specifically, she was diagnosed with Plantar Fasciitis in both feet, with neuroma and a bone spur in her right foot. Among other things, Complainant also suffered pain in her legs and back, as well as stress-induced shortness of breath. The Office of Workers Compensation Programs ("OWCP") found she was able to work 6 hours per day instead of her previous 8 hours, and, light duty that did not require her to walk for the remaining 2 hours. Complainant alleges that her first level supervisor ("S1"), the Customer Services Supervisor, would continually send her home after 6 hours of work, claiming not to have any light duty work for her to do during the remaining 2 hours of her shift.
Complainant argues that light duty work was available, citing another letter carrier with a similar OWCP limitation, who was assigned to answering phone calls once he "worked up to his max" in letter carrying work. Complainant also disputes S1's explanation in the record that she "refuses" additional hours when he offers them. S1 indicates in the record that he was aware of Complainant's OWCP light duty requirement. He also notes that Complainant did not receive hours for a period in January 2016 because she and a coworker were put on emergency placement after engaging in an altercation on the loading dock with "loud arguing, physical contact and inappropriate language." Although Complainant's formal complaint provided an end date for Claim 1, we find a fair reading of the record indicates that Complainant alleged that the alleged discriminatory incidents in Claim 1 are continual an ongoing.
The Letter of Demand indicates that it was issued in response to a request by Complainant for a "Leave Buy Back." However, on appeal, Complainant alleges that her second level supervisor ("S2"), the Manager of Customer Services, requested the Letter of Demand, as retaliation for her prior EEO activity. She further alleges that S2's purpose in obtaining the letter was to demonstrate that she did not earn the $3766.56 provided in the "Buy Back" letter. While S2 provides that he received the letter to give to Complainant, S1 states that he was unaware of the letter. Neither S1 nor S2 had further information on whether she bought her leave back or not, nor have they received any other letters.
The Agency dismissed Claim 1 for failure to state a claim under 29 C.F.R. � 1614.107(a)(1), finding that Complainant already raised the same claim in another complaint.
Alternately, it dismissed Claim 1, along with Claim 2 on the grounds that neither claim was timely raised with an EEO Counselor in accordance with 29 C.F.R. � 1614.107(a)(2).
Claim 3 was dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that the demand letter should be addressed in accordance with the Debt Collection Act.
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Essentially, Claim 1 alleges that by failing to provide Complainant with light duty assignments within her OWCP medical restrictions, the Agency has repeatedly denied Complainant's requests for reasonable accommodations. See Burris v. Dep't of the Navy, EEOC Appeal No. 01200645531 (Jan. 10, 2007). Our regulations require agencies 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 Melodee M. v. Dep't of Veterans Affairs, Appeal No. 0120142484 (Apr. 8, 2016). We find that Complainant is "aggrieved" for purposes of stating a claim, as the alleged denial of reasonable accommodations has repeatedly prevented her from working a full 8 hour shift sontsituting, a harm or loss with respect to a term, condition, or privilege of employment. Diaz, supra
Given that Complainant's disabilities resulted from an on the job injury, we 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) (The Agency's duty to provide reasonable accommodations is ongoing, and the agency cannot use an OWCP decision as reason for not providing reasonable accommodations.) See also Gonzalez v. United States Postal Serv., EEOC Appeal No. 0120082632 (Nov. 27, 2009). (The complainant's allegation that an agency discriminated against her on the basis of her disability when it sent her home and would not allow her to work after she refused a modified job offer states a claim because in effect, Complainant was alleging that the Agency refused to provide her with a reasonable accommodation.)
The Agency has not provided sufficient evidence to support a finding of failure to state a claim due to Complainant raising the same claim in another proceeding. Most notably, the complaint file does not contain a signed and dated copy of the settlement agreement that allegedly resolved Complainant's identical allegation (Agency No. 4k-220-0066-15). The Agency provided part of Complainant's pre-complaint (the attachment she references that described those claims is not included), which based on the record as a whole is not enough to support a dismissal for failure to state a claim. Moreover, as described in the timeliness discussion below, each allegation of denial of a reasonable accommodation constitutes a new claim. Hence, Claim 1 states a claim.
Claims 1 and 2
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in relevant part, 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. Under �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.
This 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). Further, the EEOC 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." Complainant alleges that her requests for work within her medical restrictions were denied despite the ongoing nature of her alleged need for the accommodation. Accordingly, this claim should be viewed as a recurring violation, and as such, Complainant's EEO Counselor contact for Claim 1 was timely.
As for Claim 2, the alleged discriminatory act, placement on leave without pay, is a personnel action, so the 45 day limitation period was triggered on January 8, 2016, the date the action became effective. Complainant did not initiate contact with an EEO Counselor until May 12, 2016, which is beyond the 45 day limitation period. Claim 2 was properly dismissed as untimely.
Claim 3
The Debt Collection Act, 31, U.S.C. 3711 et seq. mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. The Commission has previously held that challenges to an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process and the Commission's jurisdiction. See Baughman v. Dep't of the Army, EEOC Appeal No. 01900865 (Feb. 26, 1990); see also Complainant v. United States Postal Serv., EEOC Appeal No. 0120131004 (Oct. 29, 2013), request for reconsideration denied, EEOC Request No. 0520140088 (Apr. 15, 2014) (finding a complainant's allegation that a notice issued by the Office of Personnel Management to inform her that it would collect government debt on behalf of the agency was covered by the Debt Collection Act, and therefore failed to state a claim because the Commission does not have jurisdiction to decide matters involving debts). In the instant complaint, the alleged discriminatory act in Claim 3, a demand letter from the Agency to Complainant to buy back her leave, is part of a process governed by the Debt Collection Act, and therefore, outside the jurisdiction of this Commission.
We note that among the documentation Complainant offers and cites in her appeal is a May 2, 2015 letter issued by the Agency to Complainant, which states: "[t]his will serve to notify you of the [Agency's] intention to collect from you the sum of $3,766.57." As it references a monetary dispute involving an agency of the United States Government the demand letter referenced in Claim 3 must be resolved through the provisions of the Debt Collection Act Regardless of Complainant's arguments concerning her repayment status and the Agency's alleged discriminatory motives in issuing the letter. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130752 (Apr. 17, 2013) (referencing Amato v. Dep't of the Army, EEOC Request No. 0520070240 (Jul. 18, 2007)). Claim 3 fails to state a claim. The proper forum for Complainant to have raised her challenges to the demand letter was under that statute.
CONCLUSION
Accordingly, the Agency's final decision dismissing Claim 1 is REVERSED and the Agency's final decision dismissing Claims 2 and 3 is AFFIRMED.
Claim 1 is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E1016)
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 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 (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 (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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 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 Complainant's allegation that her role as Union Steward impeded her ability to get light duty work, does not allege discrimination under our statutes, and will not be addressed in this decision. The proper venue to raise an allegation concerning protected union activity is through the grievance process under the relevant Collective Bargaining Agreement ("CBA").
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