Vincent V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 23, 20192019003381 (E.E.O.C. Jul. 23, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vincent V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019003381 Agency No. 4J-481-0042-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 1, 2019, dismissing a formal 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 During the period at issue, Complainant worked as a Letter Carrier for the Agency in Clawson, Michigan. On December 10, 2018, Complainant requested pre-complaint counseling. Informal efforts at resolution were not successful. On March 16, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on disability (learning) when: 1. on or prior to July 18, 2018, Complainant made a number of requests for accommodation for his disability, but was not accommodated by management; and 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 20190003381 2. on July 18, 2018, a union steward advised Complainant to resign, which he did. The Agency dismissed the formal complaint on two grounds. First, the Agency dismissed both claims for untimely EEO Counselor contact, pursuant to 29 C.F.R. §1614.107(a)(2). Specifically, the Agency determined that Complainant knew the allegedly discriminatory acts had occurred no later than July 18, 2018, but that Complainant did not initiate EEO Counselor contact until December 10, 2018. Second, the Agency also dismissed Complainant’s second allegation for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). The Agency asserted that Complainant’s charge of discrimination by his union steward was an impermissible attack on a non-EEO proceeding. The instant appeal followed. On appeal, with assistance from his spouse and legal counsel, Complainant disputed Agency’s description of events leading up to his resignation. Complainant stated that he had multiple discussions with management regarding his disability and need for accommodations to complete letter carrier training. Complainant further stated that he had requested his supervision provide him assistance and further training so that he could accomplish his route on schedule and also reduce erroneous deliveries. Additionally, Complainant maintained he had made inquiries and requests to be transferred to maintenance or custodial services. He explained that such positions would have better comported with his disability than him working as a letter carrier. Complainant noted that during class and route training, he was humiliated daily, and asked if he was “retarded.” Complainant noted further that he could hear management officials talking “in the open” about him. Finally, Complainant stated that he had never worked in the area of the facility where the Agency had posted notice of EEO timelines. ANALYSIS AND FINDINGS Claim 1 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. A fair reading of the instant record reflects that Complainant was new to the Agency and new to federal employment. Complainant passed an entrance examination for employment in the Agency. Later, the Agency made Complainant re-accomplish his initial letter carrier training because it was evident he was struggling in entry-level classroom exercises. Complainant stated that he had worked diligently to secure Agency employment and made multiple efforts to improve his performance as a letter carrier. 3 20190003381 Additionally, throughout his employment with the Agency, Complainant described his ongoing attempts to obtain accommodations either in the form of remedial instruction, employee support for his route, or through transfer to a different craft. Complainant notes his learning disabilities, and his difficulties in reading. In dismissing Claim 1 as untimely raised with an EEO Counselor, the Agency relied on an affidavit from a supervisor declaring that a poster containing the 29 C.F.R. §1614.107(a)(2) time limits had been posted properly. In pertinent part, the supervisor stated as follows: EEO Poster 72 has been properly posted while I have been at this office. This poster advises employees of the time requirements for filing an EEO Counseling request and the telephone number to contact to request EEO counseling. Here, however, we conclude the above-mentioned affidavit does not prove that EEO Poster 72 provided Complainant with adequate notice that he needed to contact an EEO Counselor within 45 days of alleged discrimination, given his assertions about his reading abilities. Even if the Agency had posted the EEO deadlines properly, there is no evidence that Complainant had sufficient constructive notice of the deadline, by comprehending its implications, given the circumstances of Complainant as elucidated above. Therefore, given the specific circumstances of this case, we determine that it is appropriate to excuse the delay by Complainant in seeking EEO counseling. See 29 C.F.R. §1614.604(c). Claim 2 EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. To establish 29 C.F.R. §1614.103 standing, a complainant must be either an employee or an applicant for the agency against where allegations of discrimination are raised. In addition, claims must concern a policy or practice which affects the individual in his capacity as an employee or applicant. An agency shall accept a complaint from any aggrieved employee or applicant who believes that he has been discriminated against by that agency because of disabling condition or other protected characteristics. 29 C.F.R. §1614.103; §1614.106(a). Consistently, this Commission has defined an “aggrieved employee” as one who suffers a present harm or loss with respect to employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Agency dismissed Claim 2 for failure to state a claim on the basis that it alleged discrimination by a union official. However, we find that the Agency has mischaracterized this claim. A fair reading of the formal complaint, EEO counseling report and Complainant’s statement on appeal indicates that this claim in more properly defined as a constructive discharge claim. 4 20190003381 In essence, Complainant is alleging that because management was unresponsive to his requests for reasonable accommodation, including a reassignment to a position more suited to his learning disability, he felt compelled to resign from his position because a termination from his letter carrier position, which seemed imminent, would have precluded him from reapplying for another position with the Agency. An allegation of a constructive discharge resulting from a violation of the Rehabilitation Act clearly states a claim. As we are remanding Claim 1 for further processing concerning the failure to accommodate claim, we also find it appropriate to remand the constructive discharge claim that allegedly resulted from the failure to accommodate. CONCLUSION According, we REVERSE the Agency’s dismissal of the complaint and REMAND it to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (failure to accommodate culminating in a constructive discharge) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to Complainant and his representative. 5 20190003381 If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 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). 6 20190003381 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 July 23, 2019 Date Copy with citationCopy as parenthetical citation