01991441
12-28-2000
Fenny Braide, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Fenny Braide v. United States Postal Service
01991441
December 28, 2000
.
Fenny Braide,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991441
Agency No. 1-C-191-0103-98
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision pertaining to his 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.<1>
The Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
On February 12, 1998, complainant contacted the EEO office regarding
claims of discrimination based on disability. Specifically, complainant
claimed he was �denied reasonable accommodation from the dates and
ongoing.� Informal efforts to resolve complainant's concerns were
unsuccessful. Subsequently, on April 21, 1998, complainant filed a
formal complaint.
The agency issued a decision, dated December 2, 1998, wherein it framed
the claim as follows:
Complainant was allegedly discriminated against on the basis of physical
disability when, by letter dated December 15, 1997, he was denied job
restoration.
Finding that complainant contacted the EEO office approximately 59 days
after the alleged event, the agency dismissed the complaint for untimely
Counselor contact. Further, the agency determined that complainant
offered no evidence to justify extending the time limitation.
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 forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (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 forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As a preliminary matter, the Commission finds that the agency misdefined
the complaint. Although in its decision the agency identified the
claim as the denial of job restoration on December 15, 1997, we find,
based upon a review of the record, that complainant raises a reasonable
accommodation claim. In his request for counseling, complainant stated
that he was injured on the job, came back to work and was provided
an accommodation. He stated that after August 4, 1997, however,
he was continuously denied reasonable accommodation. Moreover,
the EEO Counselor noted in her report that �[t]he counselee stated,
he was denied reasonable accommodations....� In his formal complaint,
complainant claimed he was �denied reasonable accommodation or modified
job description...� and the corrective action sought was �reasonable
accommodation.� Therefore, the complainant's claim, as redefined by
the Commission, is whether the complainant was discriminated against
when the agency failed to provide him an accommodation.
The Commission has held that a failure to provide a reasonable
accommodation may constitute a recurring violation, that is, a
violation that recurs anew each day that the agency fails to provide the
accommodation. See Harman v. Office of Personnel Management, EEOC Request
No. 05980365 (November 4, 1999); Mitchell v. Department of Commerce,
EEOC Appeal No. 01934120 (March 4, 1994). Here, it appears that after
complainant filed his complaint, the agency, in a letter dated May 21,
1998, requested that he clarify the exact dates he was denied reasonable
accommodation. However, complainant's response is not contained in the
record. The Counselor's Report states that complainant �establish[ed]
one date of December 15, 1997.� Based on a review of the record, however,
we find that several other dates were provided and complainant asserted
that the accommodation denial was �ongoing.� Consequently, we find that
the record is not sufficiently clear regarding the date or dates when
complainant requested reasonable accommodation and the agency's response.
As we are unable to make a determination regarding the propriety of the
agency's dismissal of complainant's claim, we will vacate the agency's
decision and direct it to conduct a supplemental investigation on
the matter.
Accordingly, the agency's decision to dismiss complainant's complaint is
VACATED. The complaint is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to
obtain documentary evidence, or evidence in the form of affirmations or
affidavits, including a statement from complainant if needed, regarding:
(1) the exact dates of every request by complainant for reasonable
accommodation;
(2) the substance of the reasonable accommodation request(s);
(3) the specifics of complainant's alleged disability;
(4) the identity of the person or persons to whom the request(s) was made;
(5) the dates and contents of each and every response to the request(s).
Thereafter, the agency shall issue a new final decision or notify
complainant that it is processing the complaint. The supplemental
investigation and issuance of the final decision or notice of processing
must be completed within thirty (30) calendar days of the date that this
decision becomes final.
A copy of the agency's new final decision or notice of processing must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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 (R0900)
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 (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
December 28, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.