COMPLAINANTS,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Request Nos. 05A60449, 05A60445, 05A60450, 05A60448, 05A60446, 05A60447, 05A51103
Appeal Nos. 01A51640, 01A51641, 01A51646, 01A51647, 01A51648, 01A51666, 01A51767
Agency Nos. 4A-110-0146-04, 4A-110-0152-04, 4A-110-0145-04, 4A-110-0147-04, 4A-110-0151-04, 4A-110-0149-04, 4A-110-0150-04

May 4, 2006

GRANT

Complainants, through their representative, requested reconsideration of the decisions referenced above. EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). After reconsidering the previous decisions and their corresponding records, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to grant the request.[FN1]

BACKGROUND

Complainants were employed as City Letter Carriers at the agency's facility in Flushing, New York. Each had been injured on the job, resulting in a "permanent partial disability" and had accepted workers' compensation claims. The agency contends, and complainants do not dispute, that their medical conditions impacted on their ability to perform the duties of a city carrier. Once it was determined that complainants could no longer perform the full range of their carrier duties, the agency assigned each complainant to a limited duty "modified position" consistent with his or her medical restrictions. The agency had provided Complainant I with a limited duty position since July 1988, Complainant II since July 1997, Complainant III since November 1991, Complainant IV since August 1997, Complainant V since May 1998, Complainant VI since January 1990, and Complainant VII since February 2003.

Each complainant received a letter from the Flushing Postmaster dated May 24, 2004. In the letter, the Postmaster stated, in pertinent part:
Your current modified assignment, to which you were assigned consistent with your medical limitations, no longer meets operational requirements. This determination is based on a review of current operational needs. You will be placed in an administrative leave status effective Monday May 24, 2004, continuing through Friday May 28, 2004. You will then be placed in a Leave Without Pay (LWOP)-Injured On Duty (IOD) status effective Saturday May 29, 2004.

The letter also provided complainants with information on how to apply for compensation payments from the Office of Workers' Compensation Programs (OWCP) "while in this LWOP-IOD status."

Complainants assert that in July 2004, while on LWOP-IOD, they received telephone calls from a Vocational Rehabilitation Specialist with OWCP. Complainants assert that the Vocational Rehabilitation Specialist talked to them about employment possibilities outside of the Postal Service, and subsequently informed them that it was his job was to find complainants "a new source of employment in the private sector."See Affidavit of Complainant Marcus, dated December 27, 2004. [FN2] Complainants contend this was the first time they realized their employment with the agency might be terminated.

Complainants contacted an EEO Counselor in August 2004, within forty-five (45) days of the July 8 conversation with the Vocational Rehabilitation Specialist. In a Pre-Complaint Counseling form that each complainant completed, they each described the following incident that prompted them to seek EEO counseling:
On July 8, 2004, Vocational Rehab Specialist contacted me at this time to consider employment outside the Postal Service and that I am no longer considered a postal employee and they would help me find employment outside the Postal Service. I was denied reasonable accommodations. [FN3]

As relief, complainants asked, among other things, to have their "rehab position back at the Post Office or something in Post Office."

Informal efforts to resolve their concerns were unsuccessful and complainants each filed a formal EEO complaint. Therein, complainants claimed that they were subjected to discrimination on the bases of disability and age. [FN4] The complaints contained, in pertinent part, the following language:
On May 24, 2004 I was notified that there was no longer any work available for me. I was lied to and not told that I was being outsourced to the private sector...The Postal Service failed to provide any reasonable accommodation for my disability....

In seven separate final decisions, the agency dismissed complainants' complaints on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The agency found that the alleged discriminatory incident occurred on May 24, 2004, the date of the Postmaster's letter notifying the complainants that they were being placed on LWOP, but that complainants did not initiate EEO counselor contact until August 2004, which it determined was beyond the applicable time limit.

In the Commission's prior decision in Marcus v. United States Postal Service, EEOC Appeal No. 01A51767 (May 31, 2005), we reversed the agency's final decision dismissing complainant's complaint. Specifically, we stated that "complainant has timely raised a claim of on-going failure of the agency to provide complainant with a reasonable accommodation for his disability."

However, in the remaining six cases, the Commission affirmed the agency's final decisions dismissing complainants' complaints on the grounds of untimely EEO Counselor contact. The Commission found in these six cases that the date of the specific alleged agency discriminatory action was May 24, 2004, the date of the Postmaster's letter, and that the complainants initiated EEO Counselor contact in August 2004, more than 45 days after May 24, 2004.

ANALYSIS

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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 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.

On appeal and in their request for reconsideration, complainants argue that the May 24, 2004 letter from the Post-master did not provide them with any reason to believe that the agency was not going to search for other positions for them, but rather planned to force them into accepting positions in the private sector by denying them paid work. [FN5] They assert that until the July 8 conversation with the Vocational Rehabilitation Specialist they believed they were only temporarily placed on LWOP pending reassignment to new positions.

Upon reconsideration of the entire record, as well as the arguments submitted by the parties, we are now persuaded that complainants timely initiated EEO counselor contact from the point at which they reasonably suspected discrimination. The agency's characterization of the claim raised by complainants as dealing solely with the Postmaster's May 24, 2004 notification that their modified positions no longer met operational needs resulting in their placement on LWOP is not supported by the record. Rather, a fair reading of the complaints, as amplified by the pre-complaint counseling forms, reveal that the claim raised is more properly defined as an ongoing failure to provide reasonable accommodation for their disabilities when the agency removed them from their limited duty/modified positions and did not consider them for reassignment to another position. In other words, it is the indefinite nature of their LWOP status that complainants contest. A review of the record reflects that complainants initiated EEO counselor contact in August 2004, within 45 days of their discussions with the Vocational Rehabilitation Specialist when, in essence, they realized for the first time that the agency was not considering reassigning them to other positions within the agency, but instead intended to force them, through indefinite placement on LWOP, to leave the agency for jobs in the private sector. See EEOC's Compliance Manual, Section 2 on "Threshold Issues," Directive No. 915.003 (July 21, 2005), p. 2-73. Therefore, the agency's dismissal of their complaints for untimely EEO counselor contact was incorrect.

CONCLUSION

After reconsidering the previous decisions, and the entire record, the Commission finds that complainants' request meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to grant the request. The decisions of the Commission in Appeal Nos. 01A51640, 01A51641, 01A51646, 01A51647, 01A51648, 01A51666, and the corresponding final decisions of the agency are REVERSED. In addition, we find that the Commission properly reversed the agency's final decision in Appeal No. 01A51767, although our analysis set forth above clarifies the reasoning set forth in our initial decision. All seven complaints are REMANDED to the agency for further processing in accordance with the ORDER below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.

ORDER (E0900)

The agency is ordered to process the remanded claims, as defined herein, in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to the complainants that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to complainants a copy of the investigative file and also shall notify complainants 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 complainants request 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 the complainants 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 (K0501)

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 19848, Washington, D.C. 20036. 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

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 (Z1199)

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 that the Court appoint an attorney to represent you and that the Court 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 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:

Stephen Llewellyn
Acting Executive Officer
Executive Secretariat

FN1. The appeals filed by the seven complainants in this matter were not originally consolidated and separate initial decisions were issued by the Commission on different dates. While the request for reconsideration was not filed within the requisite thirty days from each of the decisions, the Commission accepts all seven initial decisions for consolidated reconsideration in order to ensure consistency among these closely related cases.

FN2. A virtually identical affidavit was submitted by each complainant on appeal.

FN3. While this language is from the form completed by Complainant VII, all seven complainants used virtually the same language in their forms.

FN4. Complainant II also alleged discrimination on the basis of race, in addition to the bases of age and disability.

FN5. The record indicates that as late as January 2005, complainants were still on LWOP.