EEOC Issues Final Rule Revising Federal Sector Equal Employment Opportunity Complaint Process

July 24, 2012 by · 3 Comments
Filed under: eeo 

WASHINGTON – The final rule was coordinated with other federal agencies and reviewed by the U.S. Office of Management and Budget. The rule was posted for public inspection today and will be published in the Federal Register on Wednesday, July 25, 2012.

The final rule contains a number of key revisions to 29 CFR Part 1614 (“Federal Sector Equal Employment Opportunity”):

  • As part of the EEOC’s authority to review agency programs for compliance with EEOC directives and guidelines which promote equal employment opportunity in the federal workplace, the EEOC can issue notices to agencies when non-compliance is found and not corrected.
  • Agencies can seek approval from the EEOC to conduct pilot projects in which the complaint processing procedures vary from the requirements of Part 1614.
  • A complaint which alleges that a proposal or preliminary step to taking a personnel action is discriminatory can be dismissed unless the complainant alleges that the proposal is retaliatory.
  • An agency that has not completed its investigation in a timely manner must inform the complainant in writing that the investigation is not complete, provide an estimated date of completion, and remind the complainant that he or she has a current right to request a hearing or file a lawsuit.
  • An administrative judge’s decision on the merits of a class complaint is a final decision, rather than a recommended decision, which an agency can implement or appeal.
  • Agencies must submit appeals and complaint files to the EEOC in a digital format, unless they can establish good cause for not doing so. Complainants are encouraged to submit digital filings.

Major revisions to the federal sector EEO complaint process were last implemented in 1999. Since then, in response to stakeholder dissatisfaction with certain elements of the process, the EEOC has held a public meeting on federal sector reform. It also established a Commissioner-led Federal Sector Workgroup to obtain suggestions for reform from complainants, agencies, unions, civil rights groups, and other stakeholders. This final rule is a product of the recommendations of the workgroup and the comments the EEOC received from the public and during the inter-agency coordination process. The Commission will revise Management Directive 110 to provide additional guidance regarding the changes made by the final rule and will continue to assess the federal sector EEO complaint process with a view to further improvements.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its public web site at www.eeoc.gov.

See Also

Questions and Answers on EEOC’s Final Rule Implementing

Revisions to 29 CFR Part 1614

EEOC Update: Notice to Walker vs USPS Class Members

January 11, 2012 by · 8 Comments
Filed under: eeo, postal, postal news, usps 

This is being sent to you to correct mistakes made by the Postal Service in the last mailing to class members. It was the Agency’s responsibility to provide correct information and to include an Initial Inquiry Regarding Damages, which it failed to do. The failure was in no way due to error by the Commission or the attorneys for the class. Please do not contact the judge or the lawyers for the class about this Notice. You may contact the Agency at the following number for the designated Walker contact person responsible for compliance with the order to send out the Initial Inquiry: Joseph Hopkins or Karla Malone at 855-449-0911 (toll free). Read more

Edmond Walker vs USPS EEO Class Survey

November 29, 2011 by · 10 Comments
Filed under: eeo, postal, postal news, usps 

This survey was sent via Priority Mail with Delivery Confirmation to about 26,000 potentially eligible postal employees nationwide. It’s due back December 15th.

A little background on the case:

Edmond Walker, a Temporary Rural Carrier Relief, filed a class complaint alleging that discriminatory acts had been continuing for a class of disabled permanent rehabilitation employees in the Postal Service. The EEOC Administrative Judge certified the class. note: The Walker case is sort of a spinoff of the Glover/Albrecht EEO class action.

Edmond C. Walker, the class agent in the Walker class action, filed a complaint on August 19, 2002. Walker alleged that, since April 2000, the Postal Service discriminated against individuals with disabilities by:

1.  Placing disabled individuals in permanent rehabilitation positions without engaging in the interactive process as required by law;

2. Restricting disabled individuals who are placed in permanent rehabilitation [sic] to limited work hours without any medical justification and without consulting the individual with a disability;

3. Fail[ing] to allow individuals with a disability, who have been placed in permanent rehabilitation positions, to work the number of hours determined appropriate by the individual and his/her physician and which are available; and

4. Fail[ing] to allow individuals with a disability, who have been placed in permanent rehabilitation positions, to use assistive devices in the workplace to accommodate their disabilities, including but not limited to, electric scooters, notwithstanding that said assistive devices pose no threat to safety or inconvenient [sic] in the workplace.

This claim has been analyzed to include denial of overtime.

Edmond Walker EEO Class Survey (PDF)

EEO Complaint Alleges Postal Police Officers Denied USPS Paid Benefit Offered To Postal Inspectors

September 11, 2011 by · 3 Comments
Filed under: eeo, postal, postal inspectors, postal news, postal police, usps 

Did USPS properly addressed a Postal Police Officer’s class claim allegation that she was discriminated against because the USPS does not offer self-referral counseling to its Postal Police Officers?

In a complaint dated June 22, 2008, a Postal Police Officer (PPO) in USPS’s Los Angeles Post Office in Pasadena, California maintained that she was subjected to discrimination on the bases of race, national origin, sex (female), religion, color, disability, age, and reprisal for prior protected EEO activity [under Title VII] when, on April 15, 2008, she was made aware that Postal Inspectors are provided with self-referral counseling, which she alleges, has a disparate impact on Postal Police Officers nationwide.  The PPO explained that she experienced job related P.T.S.D., when she returned to duty after a near fatal job-related car accident, and had to utilize public health care facilities through her HMO.  However the program offered to Postal Inspectors is paid for by USPS.  The PPO is seeking a class complaint concerning this issue. Read more

Appeals Court Upholds Firing of Acting Postal Supervisor (204B) For Timecard Fraud

August 10, 2011 by · 6 Comments
Filed under: eeo, legal cases, postal, postal news 

Acting Postal Supervisor was terminated for falsifying timecard but not his female boss (Postmaster)

Charles Wilcher, a 204B (acting) supervisor from the letter carrier craft, claimed he was “working” on July 5, 2006 when he spent the day with his Postmaster .  She was also accused of getting paid for July 5, 2006 even though it was alleged that she did not actually work that day.  She was initially demoted to the position of Supervisor of Customer Service, but was subsequently returned to her position as Vineland Postmaster.  Eight months after the incident Wilcher was issued a Notice of Removal.  After a grievance filed by the National Association of Letter Carriers (NALC) , a three-day arbitration hearing and two formal complaints filed with the EEOC, his removal was upheld.   The District  and Appeals Courts upheld Wilcher’s removal finding no discrimination. Read more

An Adverse Ruling In EEOC Class Action NRP Case Could Have A ‘Material Impact’ On USPS

August 8, 2011 by · 17 Comments
Filed under: nrp, postal, postal news, usps 

As PostalReporter.com noted earlier, USPS ended its National Reassessment Process (NRP) January 31, 2011. The statement by USPS below may be the reason it has quietly abandoned the program. Read more

USPS Settles Class Action Discrimination Lawsuit Filed For Disabled Veterans

June 12, 2011 by · 39 Comments
Filed under: eeo, postal, usps, veterans 

According to Hill vs Potter : Clarence Hill filed a class complaint alleging that the Postal Service discriminated against him and all disabled veteran applicants by making improper pre-employment medical inquiries. On February 18, 2011, Judge Davi named Corey Baskerville, Zedrick Jenkins,and Frank Vander Haar as additional Class Agents. Clarence Hill has not agreed to the settlement as yet. His objections to the settlement agreement will be the subject of a separate post. Read more

New Regulations On ADA Amendments Act of 2008 Broadens Definition Of Disability

April 10, 2011 by · 3 Comments
Filed under: eeo, postal 

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) issued new regulations governing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The regulations greatly broaden the definition of “disability” under the ADAAA, making clear that to “substantially” limit a major life activity, an impairment need not be “significantly” or “severely” limiting, as was previously established by Supreme Court precedent. Among other things, the list of impairments has been expanded to best define what it means to be disabled. Conditions covered include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Employers now have fewer than 60 days until the new regulations become effective on May 24, 2011. . Read more

Postal Supervisor Loses Lawsuit on Hostile Work Environment

March 20, 2011 by · 2 Comments
Filed under: legal cases, owcp, postal, postal news, postal supervisors, usps 

Postal Supervisor Claimed A Hostile Work Environment aggravated his medical condition and USPS failed to investigate.

The following facts are based upon the allegations in John Pell’s amended complaint filed in the United States District Court and information from the EEOC case.

Pell is a former employee of the USPS who worked at the Framingham, Massachusetts Post Office. In 2003, while employed as a supervisor at the USPS, Pell was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and a psychiatric condition called Transient Global Amnesia (“TGA”). After these initial diagnoses, he remained out of work until his doctors released him to return to work. Pell’s doctors allowed him to return to work in 2005 on the condition that the USPS provide “strict enforcement” of USPS regulations and policies in Pell’s work environment, specifically those regulations and policies that prohibited workplace threats, harassment, bullying, intimidation and that contain a “zero tolerance” policy for unacceptable levels of workplace stress. Pell claims that he sought such “strict enforcement” as a “reasonable accommodation” [under the Rehabilitation Act] of his condition to enable him to perform the essential duties of his job. From the time he returned to work at some point in 2005 until September 5, 2006, Pell alleges the USPS strictly enforced USPS regulations and policies in his work environment and as a result he was able to perform all of the essential functions of his job.

However, on September 5, 2006, Framingham Postmaster William Harris approached Pell at the beginning of his shift, accused Pell of sexual harassment, and told him he had three choices: (1) accept a demotion; (2) transfer out of the Framingham Post Office; or (3) “I’ll throw you out.” Pell alleges that Harris’ conduct towards him violated USPS regulations and policies against bullying, harassment, threats, and intimidation. As a result of Harris’ conduct towards him, Pell suffered a TGA episode, left the workplace and has not returned to work since that day. He has since retired from the USPS.

Pell was unhappy with the USPS’s handling of his complaint about the September 5, 2006 incident. Pell alleges that, in connection with a worker’s compensation claim he filed when he was out of work, Harris completed two forms related to the September 5, 2006 incident that were inconsistent and incomplete. Pell also claims that Harris failed to investigate the September 5, 2006 incident fully because he did not interview Pell or other witnesses. Pell further alleges that he requested that Harris be investigated for violating USPS policies and regulations in connection with the September 5, 2006 incident, but that USPS District Manager John Powers chose not to do so. In early 2008, Pell reported Harris’ violations of USPS policies and regulations to USPS Northeast Area Vice President Haney , but Haney refused to investigate Harris’ conduct and refused to refer the alleged violations to the Office of the Inspector General .

Pell sought EEO counseling on March 31, 2008 — nearly a year and a half after the alleged September 5, 2006 incident of discrimination. In contacting the EEO, Pell indicated that the date of the alleged discriminatory incident was March 4, 2008 — the date Pell became aware that Haney would not refer the alleged violations of USPS policies and regulations to OIG.

After receiving the EEO notice of right to file a formal complaint on June 23, 2008, Pell filed a complaint with the EEO on July 8, 2008. On July 28, 2008, the EEO dismissed Pell’s complaint for two reasons: (1) failure to state a claim because the Department of Labor is the proper forum to address the basis of Pell’s then pending worker’s compensation claim; and (2) untimely EEO counselor contact because Pell failed to contact an EEO counselor within 45 days of the September 5, 2006 incident.

Pell then timely appealed the dismissal of his EEO complaint to the EEOC Office of Federal Operations. The OFO upheld the Postal Service’s dismissal:

The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).

In this matter, we find that the instant complaint is a collateral attack on a proceeding before the Department of Labor, and the proper forum for complainant to raise any challenges regarding the agency’s
improper investigation of his injury is during that proceeding itself. The Commission agrees with the agency that complainant fails to state claim. See Hannon v. Treasury, Request No. 05A01149 (May 8, 2003).
After a review of the record, including statements and arguments not addressed herein, based on the reasons above, we find that the agency properly dismissed the complaint.

Reading the allegations in the Amended Complaint in the light most favorable to Pell, his claim is likewise barred by the Rehabilitation Act’s administrative exhaustion requirement. Pell alleges that Harris’ conduct on September 5, 2006 amounted to discrimination based on Pell’s psychiatric disability and caused Pell to suffer a recurrence of his TGA, forcing him to leave the workplace that very day. Like the plaintiff in Roman-Martinez who was required to contact the EEO counselor within 30 days of the alleged discriminatory actions, Pell was required to contact an EEO counselor within 45 days of the September 5, 2006 incident.2 It is uncontested that Pell failed to contact an EEO counselor within this required 45 day period and, therefore, his claim is barred for failure to exhaust his administrative remedies.

Pell does not argue that Haney’s March 4, 2008 denial of any further investigation of the September 5, 2006 incident constituted a new discriminatory action and thus became the triggering event for commencing EEO procedures nor would such argument be plausible on the basis of the facts alleged in the Amended Complaint. The Supreme Court has held, “the time for filing a charge of employment discrimination with the [EEOC] begins when the discriminatory act occurs . . . . A new violation does not occur, and a charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 628 (2007) (superceded on other grounds by Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5). “[T]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become the most painful.”

Even read in the light most favorable to Pell, March 4, 2008 was the date on which he learned that the USPS would not further investigate or refer his claim that the September 5, 2006 incident was discriminatory. That is, the September 5, 2006 allegedly discriminatory act triggered Pell’s obligation to contact the EEO

Having ruled that this matter must be dismissed because of Pell’s failure to exhaust administrative remedies, the Court need not reach Defendants’ further argument that dismissal under Fed. R. Civ. P. 12(b)(6) is also warranted because he has failed to establish a prima facie case of employment discrimination based on a disability.

John Pell vs JOHN E. POTTER, POSTMASTER GENERAL and U.S. POSTAL SERVICE, March 1, 2011

Class Action EEO Pending For USPS Improperly Requiring “Forensic Psychiatric Evaluations”

February 22, 2011 by · 3 Comments
Filed under: eeo, legal cases, postal, postal news, usps 

Postal Employees: “Were You Mandated to Submit to a  “Forensic Psychiatric Evaluation” Before USPS Allowed You Back To Work?”

The EEOC has pending before it a Petition for Class Certification over the Postal Service’s:

(1) refusal to properly train their medical unit and management personnel regarding obligations under the Rehabilitation Act; as instructed to do so in EEOC Appeal No. 0720080044, (See, Grayson v. USPS, dated 1/6/2009..see brief below)

 2) By mandating that certain employees submit to “Forensic Psychiatric Evaluations” (before allowing these employee’s to return to work).

“Complainant’s contentions are that these Forensic Psychiatric Evaluations are not shown to be job-related and consistent with the business necessity of the Agency, thus such evaluations are improper. Complainant submits this complaint as a “Class Action Complaint”, which is ongoing.”

I am looking for other employees who were mandated to submit to a “Forensic Psychiatric Evaluations” If any postal employee would like to be included into this class action complaint, please contact me G. Mojarro by 2/28/11 via e-mail ; foochiememo [at] aol.com

The class agent specifically identifies the Postal Service’s actions as adversely affecting complainants in six, maybe seven, categories:
1. Fails to reasonably accommodate employees
2. Targets disabled employees
3. Creates a hostile work environment
4. Wrongfully discloses medical information
5. Is used as retaliation for EEO investigation
6. Has an adverse impact on disabled employees, and
7. Repeatedly provides copies of Forensic Psychiatric Evaluations to the Agency’s Office of Inspector General.

Overview Of Willard Grayson v. U.S. Postal Service, EEOC Appeal No. 0720080044 (January 6, 2009) (added by PostalReporter.com)

Improper Medical Inquiry and Denial of Work

Complainant worked for the agency as a Custodial Laborer. He noticed a strong odor while mopping the floor, and subsequently reported to his supervisor that he felt sick to his stomach and had a headache. Complainant completed a workers’ compensation form, and the agency sent him for a medical evaluation. The examining physician determined that complainant was able to return to full duty; however, he noted that complainant believed he was being retaliated against and possibly poisoned. Several days later, complainant was given a letter by his supervisor advising him to provide medical documentation from his doctor clearing him to return to work. The letter did not specify any medical condition or injury. After complainant submitted a letter from a Licensed Physician Assistant releasing him to return to work, he stated that he was told he needed documentation from a psychiatrist stating that he was not a danger to himself or others before he would be allowed to return to work. Complainant ultimately saw a psychologist, who concluded that he did not appear to be a danger to himself or others. The agency’s Medical Unit Director then called the psychologist, and asked complainant to sign a release form so that the report from the initial examining physician could be sent to him. Complainant refused to sign the release, and was given a Notice to Submit Medical Documentation as well as a Notice of Deferred Seven-Day Suspension for failure to follow instructions and being absent without leave. Complainant was ultimately referred for a psychiatric fitness for duty examination.

On appeal, the Commission found that the agency violated the Rehabilitation Act by making a disability-related inquiry and not allowing complainant to return to work. While the Commission noted that it was proper for the agency to initially send complainant for a medical evaluation after he filed a workers’ compensation form, the Commission found that the agency had no basis to keep him out of work once the examining physician concluded he was able to return to duty. The Commission noted that there was no evidence that complainant had any problems performing his work or interacting with his co-workers. Further, the agency’s response to the physician’s comments about complainant’s mental state was extreme and the demands made on him overly burdensome given the circumstances of the situation. The record contained no evidence that complainant engaged in any action that would have led the agency to reasonably believe that he posed a direct threat or could not perform the essential functions of his position. Finally, the agency’s Threat Assessment Team itself found that complainant was not a threat. The Commission further found that complainant decided to retire solely because the agency kept him out of work, issued progressive discipline, and considered terminating him. The agency was ordered to offer complainant reinstatement to his prior position, with back pay and appropriate benefits. source: EEOC

note: Information may not be re-printed without permission from G. Mojarro or PostalReporter.com

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