0120113723
11-21-2012
Jill A. Butler, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Jill A. Butler,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113723
Agency No. 4G-730-0033-11
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated June 24, 2011, dismissing 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. For the following reasons, the Commission REVERSES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Oklahoma City, Oklahoma facility. The record reveals the Agency issued Complainant a Notice of Removal dated March 15, 2010, for her failure to comply with an official directive and her continued Absent Without Official Leave (AWOL) status. The effective date of the Notice of Removal was April 18, 2010. The record shows Complainant's last day in a pay status was January 29, 2010.
Complainant filed a formal complaint dated June 15, 2011, alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (right knee), and in reprisal for prior protected EEO activity when: Complainant was subjected to a hostile work environment between the years of 2000-2010, Complainant was harassed, and Complainant was issued a Notice of Removal dated March 15, 2010.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant did not contact an EEO Counselor until May 2, 2011, approximately 3,817 to 413 days from the date of her on-the-job injury (and subsequent alleged harassment) and the date of the Notice of Removal. The Agency noted EEO Poster 72, Equal Employment is the Law, is and has been posted at Complainant's facility. The Agency stated that Poster 72 informs employees or applicants for employment to contact the EEO Office within 45 calendar days of the date of the alleged discriminatory action, or the effective date of the personnel action.
On appeal, Complainant notes that she injured her knee on-the-job on November 18, 2000. She states that following the injury she returned to work with restrictions and claims that the Agency pressured her to drop her physical restrictions. Additionally, Complainant states that she also experienced unwelcomed sexual advances from her supervisor (S1) for a long period of time. Complainant alleges that S1 sexually harassed her verbally and by text messaging. Complainant states that she rejected S1's sexual advances but thereafter received difficult assignments in retaliation. Complainant states that in December 2009, the retaliation and hostile work environment escalated. She claims that S1's harassment continued for nearly a year and she states she finally sought assistance from a station manager, Person A. Complainant states that Person A spoke to S1 three times regarding the harassment and retaliation; however, there was no relief. Complainant alleges that on December 18, 2009, she experienced a break down at work as a result of the harassment which she claims left her emotionally distraught and incapacitated. Complainant notes she was taken to the local emergency room for evaluation. She states she was placed under the care of a psychiatrist, Doctor 1 and was placed off work.
Complainant provides evidence along with her appeal which she argues shows that she suffered substantial mental and psychiatric damage. Specifically, Complainant submits a detailed medical evaluation from D2, a licensed clinical psychologist, dated June 11, 2010. In his letter, D2 stated that he first saw Complainant on March 10, 2010, when she was offering "clinical and vegetative symptoms of depression associated with two separate work related incidents." D2 stated that the Agency's harassment of Complainant's work related injury in November 2000, and S1's sexual harassment of Complainant had a cumulative effect on Complainant to the point where she collapsed at work in December 2009, and required immediate emergency care. D2 explained that at the time he initially saw Complainant, she had already been placed on temporary total disability by Doctor 1 through April 10, 2010. D2 stated that in March 2010, he extended Doctor 1's placement of Complainant on temporary total disability and informed her employer that her estimated return to work date was July 10, 2010. D2 diagnosed Complainant with, among other things, major depression single episode with acute anxiety and post traumatic stress disorder acute relative to sexual harassment at the workplace.
Additionally, Complainant supplies an April 21, 2011 letter from D2 noting he has been treating Complainant for Major Depressive Disorder. In his letter, D2 stated that at the time of his initial evaluation of Complainant, he "placed [her] on Temporary Total Disability as she could not function in a work setting." D2 stated that due to "the severity of her condition, she has been unable to comprehend and did not have the capacity or capability of initiating or participating in the filing of an EEO complaint within the proscribed time period."
Complainant argues her medical evidence shows she did not have constructive knowledge of any deadlines. With regard to the Agency's claim that it displayed an EEO poster on the work site, Complainant states that the Agency did not prove that Complainant was at work in time to see the poster. Complainant states that as soon as she was able to, she initiated the EEO process.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO 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.
It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752-53 (1st Cir. 1988). In this case, the Agency provided an affidavit from Person B, Supervisor of Customer Services stating that since 2007, the Agency has posted an EEO poster in Complainant's work facility by each of the time clocks and on the bulletin board by the breakroom containing information regarding EEO rights as well as the applicable time limits for initiating an EEO counseling process. The Agency also provided a copy of EEO Poster 72, Equal Employment is the Law, which it stated was posted at Complainant's facility during the relevant time. Based on the foregoing, we find that the Agency has provided this Commission with information sufficient to determine that Complainant in fact had constructive knowledge of the time limits for EEO Counselor contact. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala, 113 S.Ct. 1940 (1993)).
Complainant alleges that she was subjected to harassment which ultimately resulted in a Notice of Removal dated March 15, 2010. The record reveals that the Notice of Removal was effective April 18, 2010. Complainant does not dispute that she did not initiate EEO Counselor contact until May 2, 2011. Rather, Complainant argues that her delay in initiating EEO Counselor contact was due to her incapacity resulting from the Agency's harassment. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual establishes he or she was so incapacitated by his or her medical condition that he or she was unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). In the present case, Complainant has supplied sufficient evidence, in the form of the June 11, 2010 and April 27, 2011 letters from her medical provider, that she was so incapacitated during the relevant period so as to prevent her from timely initiating EEO contact within 45 days of April 18, 2010. D2 noted that as of April 27 2011, Complainant recovered sufficiently and we find her May 2, 2011 EEO Counselor contact occurred within 45 days of this date.
CONCLUSION
Accordingly, the Agency's final decision is REVERSED and we REMAND the complaint to the Agency for further processing in accordance with the Order herein.
ORDER (E0610)
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 becomes final. 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 becomes final, 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 (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 21, 2012
__________________
Date
2
01-2011-3723
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113723