U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angeles C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120180592 Agency No. 4B-105-0038-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 3, 2017, 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 City Letter Carrier at the Agency's facility in Yonkers, New York. On October 11, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability. In its final decision dated October 11, 2017, the Agency determined that Complainant's complaint was comprised of the following claims: 1) [Complainant has] been submitting doctor's notes since December 22, 2016 to work [eight] hours with restrictions but she gets denied every time; 2) On or about June 8, 2017, [Complainant] received a continuous absence letter; 3) Since June 15, 2017, [Complainant's] request to return to work on light duty was denied; and 4) On or about July 20, 2017, Complainant received a letter of demand. The Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on July 19, 2017, 205 days after the alleged discriminatory incident. The Agency dismissed claim (2) for alleging a proposal to take a personnel action. The Agency dismissed claim (3) finding that this matter was the same claim raised in claim (1). Finally, the Agency dismissed claim (4) for being a collateral attack on the OWCP process. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, we find that Complainant is alleging a hostile work environment on the basis of disability comprised of the following incidents: being denied a reasonable accommodation since December 2016, being issued a continuous absence letter, and receiving a letter of demand. Dismissal of Claims (1) and (3) In claims (1) and (3), Complainant is alleging an ongoing denial of a reasonable accommodation claim (which is part of her overall hostile work environment claim). The Agency improperly dismissed incident (1) for untimely EEO Counselor contact. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim 'collectively constitute one unlawful employment practice,' the entire claim is actionable as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside of the filing period that [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,117 (2002)). At least one of the incidents occurred within the 45 days preceding Complainant's EEO contact on July 19, 2017 (such as the June 8, 2017 continuous absence letter). In addition, Complainant's hostile work environment claim consists, in part, of an ongoing denial of a reasonable accommodation. 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." In the instant matter, the record reflects that Complainant is alleging that since December 2016, the Agency has not allowed her to return to work on light duty with her restrictions. Accordingly, we find that Complainant's overall hostile work environment claim (which includes the denial of a reasonable accommodation claim) is timely. We further find that the Agency improperly dismissed claim (3) finding that it stated the same claim set forth in incident (1). Rather, we find that claims (1) and (3) are both part of Complainant's ongoing denial of a reasonable accommodation claim. Dismissal of Claims (2) and (4) The Agency improperly dismissed claim (2), the continuous absence letter, for alleging a proposal to take a personnel action. Proposed actions do not create a direct and personal deprivation which would make the complainant an "aggrieved" employee within the meaning of EEO Regulations. See Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991); Lewis v. Dep't of the Interior, EEOC Request No. 05900095 (Feb. 6, 1990). However, if a proposed action is purportedly combined with other acts of harassment to form an alleged pattern of harassment, the agency may not properly dismiss it as a proposed action. See Suttles v. USPS, EEOC Request No. 05970496 (April 8, 1999). In the instant matter, the continuous absence letter is part of Complainant's hostile work environment claim. Moreover, we find that this incident when viewed collectively with the other alleged incidents (letter of demand, denial of a reasonable accommodation) sets forth an actionable claim of harassment. We further find that the Agency improperly dismissed claim (4), the letter of demand, for failure to state a claim reasoning that it is a collateral attack on the OWCP process. To the extent that Complainant may be alleging that the Department of Labor (DOL) denied her OWCP claim, we concur this matter fails to state a claim because it is a collateral attack on the OWCP process. However, we find that the crux of claim (4) is that Complainant was issued a letter of demand by the Postal Service seeking a specified monetary amount from her (a separate issue than DOL's determination of her OWCP claim). To the extent that the Agency, in its final decision, asserts that the letter of demand is due to Complainant's OWCP claim being denied, we find that this goes to the merits of Complainant's complaint and not to the procedural issue of whether Complainant has set forth an actionable claim. As set forth above, we find that the alleged incidents set forth herein are sufficiently severe or pervasive to set forth an actionable claim of harassment. We REVERSE the Agency's final decision dismissing the formal complaint (defined herein as a hostile work environment claim) and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (defined herein as hostile work environment/failure to accommodate claims) 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 (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 February 15, 2018 __________________ 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 0120180592 6 0120180592