01A22857_r
05-15-2003
Harold Scheid, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Harold Scheid v. United States Postal Service
01A22857
May 15, 2003
.
Harold Scheid,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22857
Agency No. 1-C-297-0008-02
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 2, 2002, dismissing 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.
On January 17, 2002, complainant initiated EEO Counselor contact.
After informal efforts to resolve complainant's claims failed,
complainant filed a formal complaint on February 26, 2002. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of disability and in reprisal for prior EEO activity when:
On or about January 2002, complainant was forced to apply for disability
retirement because disability accommodations had not been granted; and
On January 14, 2002, complainant learned that an agency official told the
Office of Personnel Management (OPM) that �he never requested his job
back,� and that this action was part of the agency's continuous effort
to deny him reasonable accommodation and to stop his application for
disability retirement;
In November 2000 and ongoing, complainant's requests for reasonable
accommodation were not honored by management;
Since July 6, 2001, complainant was forced to use his annual and sick
leave because the agency never called him back to duty after the agency
instructed him not to return to work until further notice; and
From July 6, 2001 through August 2, 2001, the agency denied complainant
leave.
In its final decision, the agency dismissed complainant's complaint.
Specifically the agency found that claims 1 and 2 were previously raised
in Agency Nos. 1D-297-0003-00 and 1D-297-0002-01. Further, the agency
dismissed claims 3 - 5 on the grounds of untimely EEO Counselor contact.
Claims 1 and 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
In seventeen claims contained in Agency No. 1D-297-0003-00, complainant
contended that three agency officials subjected him to harassment
from April 1999 through May 2000. The alleged harassment included an
agency official removing complainant from assignments, reassignment
to a detail, offensive comments from supervisors, and failure to pay
overtime. In seven claims contained in Agency No. 1D-297-0002-01,
complainant alleged that he was subjected to harassment in September
2000. The alleged harassment included claims that complainant was
refused work pending medical documentation; failure to pay for the
medical documentation; denial of administrative leave; discrediting of
complainant's work and paging him on the loudspeaker and cell phone;
and denial of a reasonable accommodation in September 2000.<1>
Upon review, we find that the agency improperly dismissed claims 1 and 2
for stating the same claims contained in Agency Nos. 1D-297-0003-00 and
1D-297-0002-01. We determine that the instant complaint does not involve
the same claims contained in Agency Nos. 1D-297-0003-00 and 1D-297-0002-01
because it involves distinct matters undertaken by different agency
officials during different time periods. Moreover, the gravamen of the
instant complaint is that the agency failed to accommodate complainant,
whereas the gravamen of Agency Nos. 1D-297-0003-00 and 1D-297-0002-01
involves alleged ongoing harassment. Consequently, we reverse the
agency's dismissal of claims 1 and 2.
Claims 3 - 5
Although the agency determined that the instant complaint was comprised
of five distinct matters, we determine that the instant complaint consists
of a claim that the agency denied complainant reasonable accommodation for
his disability, that culminated in his forced separation in January 2002.
In essence, claim 3 states complainant's general assertion that the agency
failed to reasonably accommodate his disability starting in November 2000.
Claims 1, 2, 4, and 5 involve matters that resulted from the agency's
alleged failure to accommodate complainant's disability, culminating
with complainant's alleged forced retirement/constructive discharge in
January 2002.
The Commission determines that because claims 1 - 5 should be viewed
comprehensively as interrelated matters that comprise a single claim of
failure to accommodate culminating in job separation, the last relevant
action in this claim occurred in January 2002, when the agency allegedly
forced complainant to retire. 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 matters alleged to be discriminatory.
Consequently, we find complainant's January 17, 2002 EEO contact timely
for all matters detailed in complainant's complaint.
Accordingly, the final agency decision dismissing complainant's complaint
is REVERSED. The complaint as identified herein is REMANDED to the
agency for further processing in accordance with this decision and the
ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded complaint in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded complaint 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 (K0501)
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)
(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 (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 (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
__May 15, 2003________________
Date
1The agency consolidated Agency
Nos. 1D-297-0002-00, 1D-297-0003-01, and 1D-297-0010-00 and issued a
final agency decision dated July 22, 2002 on these matters.