01a51666
03-31-2005
Norma Citarella, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Norma Citarella v. United States Postal Service
01A51666
03-31-05
.
Norma Citarella,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51666
Agency No. 4A-110-0149-04
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 17, 2004, dismissing her 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of disability (not specified) and age (D.O.B. 11/23/1956) when,
on May 24, 2004, she was notified that her modified position no longer
met operational requirements, and she was placed on administrative leave
followed by leave without pay.
The agency dismissed complainant's complaint for untimely Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
On appeal, complainant contends that the dismissal of her complaint
by the agency was improper because it ignored the allegation that the
agency failed to make a reasonable accommodation to complainant on a
continuing basis. She states that she contacted an EEO Counselor when
she discovered that the agency planned to out-source her to the private
sector and not accommodate her within in the agency.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to initiate contact with an 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. See 29 C.F.R. � 1614.105(a)(1).
The record discloses that the alleged discriminatory event occurred
on May 24, 2004, but complainant did not initiate contact with an EEO
Counselor until August 13, 2004, which is beyond the forty-five (45) day
limitation period. In complainant's statement on appeal, complainant
asserts that she viewed the incidents giving rise to her claim as a
failure by the agency to grant a reasonable accommodation. The record
reflects, however, that the agency specifically denied complainant's
request for a reasonable accommodation when, on May 24, 2004, she
was notified that her modified position no longer met operational
requirements, and she was placed on administrative leave followed by
leave without pay. We find that this act by the agency triggered the
time limit for initiating EEO contact. Based on these circumstances, the
Commission cannot find that this matter constitutes a recurring violation,
that is, a violation that recurs anew each day that an employer fails
to provide an accommodation. See Mitchell v. Department of Commerce,
EEOC Appeal No. 01934120 (March 4, 1994). Complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-31-05______________
Date