U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine G,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180858 Agency No. 4K280015317 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC or Commission") from the Agency's November 30, 2017 dismissal of his 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 was employed by the Agency as a Letter Carrier (PS-2) at the Hendersonville Annex in Hendersonville, New Jersey. On November 1, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and disability (mental)2 when: 1. Since December 12, 2016 he has not been allowed to return to work; 2. On December 19, 2016, he was sent for a Psychiatric Fitness For Duty ("FFD") and was never given a copy; 3. On March 16, 2017, he was placed on Enforced Leave in an off-duty status without pay, where he remains, as he was told he is a "danger to himself or others" without evidence; 4. On unspecified dates, he was subject to "unreasonable requirements" when he made additional requests to return to work, and his requests were denied, despite providing everything requested to return to work; and 5. On or around July 18, 2017, he began receiving letters to report for investigative interviews, yet he was still told he was considered a "danger to himself or others." As a preliminary matter, Complainant's Formal Complaint consisted of the allegation in Claim 3 only. However, on appeal, Complainant clarified his complaint to include the matters alleged in Claims 1, 2, 4 and 5. Given that these allegations are also reflected Complainant's Pre-Complaint, Counselor's Report, and in his October 18, 2017 Notice of Right to File, we find it appropriate to include them here as well. On December 12, 2016, Complainant returned to work after receiving medical treatment for a psychiatric disability. He provided the Human Resources Manager ("HR") (female, disability status not specified) with a doctor's note that cleared him to work, however, he was sent for an FFD instead. The doctor who conducted the FFD recommended Complainant not return for another three months, and stipulated that he receive continued treatment, and regularly take medication. Complainant was not provided a copy of the FFD. His requests to return to work were denied, and on March 16, 2017, he was placed on Enforced Leave in an off-duty status without pay. Complainant alleges that HR actively sought to keep him from returning to work, stating that he was a danger to himself or others, without providing evidence. Complainant filed 8 grievances on the matter throughout the relevant time frame. On or around July 10, 2017, Complainant alleges that he became aware that another City Letter Carrier (female, disability not disclosed) ("C1") returned to work after an extended absence of nearly six months with a doctor's note, and "was immediately placed back in full active duty." Unlike Complainant, C1 was not sent for an FFD, found to be "a danger to [her]self or others" despite providing medical documentation to the contrary, or placed on off-duty status without "just cause." Complainant alleges that other female employees have received the same preferential treatment, but does not specify whether those female employees had the same psychiatric disability or symptoms as Complainant. In August, Complainant was asked to attend investigatory interviews, yet was still considered "a danger to himself and others." According to HR, the interviews were related to a harassment investigation. HR also maintains (and Complainant disputes) that Complainant has not returned to work because he failed to provide the required medical documentation. On appeal, Complainant had been on off-duty status for over a year. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. 1614.107(a)(2). ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides 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. 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 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Based on the March 16, 2017 Notice, which is a personnel action, the Agency found Complainant's complaint untimely, as Complainant did not contact an EEO Counselor until July 20, 2017, approximately 124 days later. On appeal, Complainant contends, and we agree, that due to the "ongoing" nature of this personnel action, Complainant's complaint is timely. The Agency has offered no information about when this enforced leave status might end, or appeal rights for Complainant. As Complainant is impacted by the alleged discriminatory action on a daily ongoing basis, we find his complaint timely. To the extent that Complainant alleges improper handling of his EEO Complaint based on alleged "conflicts of interest" held by HR, EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a "spin-off" complaint. MD-110 indicates further that "spin-off" complaints should be referred to the agency official responsible for complaint processing and/or processed as part of the original complaint. Based on the above, the Commission agrees that the instant complaint is a "spin-off" and finds that the complaint fails to state a claim under EEOC regulations. CONCLUSION Accordingly, we REVERSE the Agency's dismissal of Complainant's complaint, and REMAND the matter for further processing in accordance with 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 (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 April 3, 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 Although Complainant alleged discrimination on the basis of sex only, a fair reading of the record also provides for an allegation of discrimination on the basis of disability. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). The Commission gives broad application to the court's decision in Sanchez and complainants are given liberal latitude to clarify the bases of discrimination in their charges, and to add bases of discrimination after filing their charges. Edwards v. Dep't of Defense, EEOC Request No. 05910830 (Dec. 19, 1991); Castillo v. United States Postal Serv., EEOC Appeal No. 01956860 (Mar. 22, 1996) (basis of discrimination not made clear until appeal). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180858 6 0120180858