01984474
06-21-1999
Jacqueline A. Young, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jacqueline A. Young v. United States Postal Service
01984474
June 21, 1999
Jacqueline A. Young, )
Appellant, )
)
v. ) Appeal No. 01984474
) Agency No. 4-B-020-0057-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's final decision dismissing
appellant's complaint on the grounds of untimely EEO counselor
contact, was not proper, in part, pursuant to the provisions of 29
C.F.R.�1614.107(b).
By letter dated April 29, 1996, appellant was advised by the agency
that "there is no work for [her] ... presently [she does] not meet the
requirements of [her] position". After appellant filed a grievance
concerning the agency's refusal to provide reasonable accommodation
to her in the fall of 1995, a hearing was held on July 29, 1996, and
the arbitrator issued an award on August 20, 1996, which found that the
agency "had violated the national agreement and the local agreement when
it refused light duty work to" appellant in the Fall of 1995.
By letter dated December 12, 1997, appellant's attorney advised the agency
that appellant was requesting reasonable accommodation. Appellant's
attorney further stated that the agency's refusal to accommodate appellant
since 1996, had caused great distress and financial harm to appellant.
Finally, the agency was informed by appellant's attorney that if the
agency failed to act within 10 ten business days, he would file an EEO
complaint on appellant's behalf.
The record shows that appellant sought EEO counseling on January 15, 1998,
alleging that she had been discriminated against on the basis of physical
disability (three herniated discs in her neck) when on December 12, 1997,
her attorney requested reasonable accommodation on her behalf, and the
agency failed to act. Appellant subsequently filed a formal complaint
of discrimination alleging that she had been discriminated against
on the bases of sex (female), age (over 40), and physical disability
(herniated discs) when she has not been allowed to work since April 29,
1996, and her requests for light duty work have been denied.
The agency issued a final decision dismissing the complaint on the
grounds of untimely EEO counselor contact. The agency defined the
complaint as follows: whether appellant was discriminated against
on the bases of sex, age and physical disability when she was denied
reasonable accommodation/light duty since April 29, 1996. The agency
found that appellant's continuing violation claim was not proper because
she suspected discrimination much earlier than her initial EEO counselor
contact as shown by the grievance she filed.
On appeal, appellant's attorney contends that the agency erred by
limiting its decision to the issue of the agency's refusal to accommodate
appellant since April 1996, without taking into consideration her
allegation concerning the December 12, 1997 reasonable accommodation
request.
On appeal, the agency claims that appellant abandoned the allegation
concerning the December 12, 1997 request because she failed to include
it in her formal complaint.
The agency dismissed appellant's claim that since April 1996, she has
not been allowed to work at the agency. The agency rejected appellant's
continuing violation claim and found that appellant had sought EEO
counseling concerning this allegation in an untimely manner because
she had filed a grievance and she suspected discrimination much earlier
than the 45 days preceding her initial EEO counselor contact. We find
that it is proper to dismiss the issue of the termination of her light
duty assignment on April 29, 1996, for untimely counselor contact.
The termination of the assignment was a discreet isolated event.
The April 29, 1996 letter in which the agency informed appellant
that there was no work available for her and that she did not meet
the requirements of her position was or should have been, sufficient
indication that the agency did not intend to accommodate her alleged
disability by continuing the clerk assignment. Marvious v. USPS, EEOC
Appeal No. 01970116 (January 14, 1998).
The Commission has held that a complainant's failure to identify an
issue in her complaint that was raised during EEO counseling constitutes
abandonment of the allegation. Remlinger v. Department of the Navy, EEOC
Appeal No. 01933756 (October 1, 1993). The agency claims that appellant
abandoned her allegation concerning the agency's refusal to respond to
her December 12, 1997 reasonable accommodation request. We disagree.
The record shows that after appellant brought this allegation to
the attention of the EEO counselor during the inquiry of her informal
complaint, in her formal complaint of discrimination appellant not only
alleged that she had not been allowed to work since April 29, 1996; the
record shows that she also alleged that her requests for light duty work
have been denied. A review of the December 12, 1997 letter shows that
it constituted a request for reasonable accommodation. Accordingly,
we find that a fair reading of appellant's formal complaint suggests
that even though appellant did not specifically mention the December 12,
1997 letter, she raised this issue when she stated that her reasonable
accommodation requests had been denied. Because the failure to provide
a reasonable accommodation is in the nature of a recurring violation
and appellant requested reasonable accommodation on December 12, 1997,
the agency should process appellant's allegation of a failure to provide
reasonable accommodation. Therefore, the agency erred by not considering
this allegation in its final decision.
The dismissal of appellant's claim that she was discriminated against when
the agency terminated her light duty assignment on April 29, 1996 was
proper and is hereby AFFIRMED. The dismissal of appellant's allegation
concerning the agency's failure to act regarding her December 12, 1997
reasonable accommodation request, was improper. Said allegation is
hereby REMANDED for further processing in accordance with this decision
and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
June 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations