01981166
12-21-1999
Jeanmaire Ciaci, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Jeanmaire Ciaci, )
Complainant, )
)
v. ) Appeal No. 01981166
) Agency No. 981008
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
We find that the agency's October 30, 1997 decision dismissing
Complainant's complaint on the grounds of untimely EEO counselor contact,
is not proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2). <1>
The record shows that on August 7, 1997, Complainant sought EEO
counseling. In her formal complaint, Complainant alleged that she had
been discriminated against on the basis of her physical disability (asthma
and arthritis) when: (1) in March 1997, management denied her reasonable
accommodation for her disability by not providing her the opportunity
to work at interim locations, such as telecommuting site or flexiplace;
and (2) on May 25, 1997, she was forced to be in a Leave without Pay
(LWOP) status as a result of not being accommodated for her disability.
Complainant also alleged that the discrimination against her was �ongoing�
since September 1996. The agency dismissed these claims on the grounds
of untimely EEO counselor contact.
The complaint shows that Complainant claims that: (a) she had �been out
of work for over seven months and denied reasonable accommodations�; (b)
in September 1996, she started requesting reasonable accommodation for her
disability and that for this purpose she brought to the attention of the
EEO office her need of a reasonable accommodation; (c) in December 1996,
nothing was done to resolve her situation although she provided doctor's
notes to several agency officials; (d) on March 13, 1997, her physician
requested an indoor air study; and, (e) on August 14, 1997, the agency
informed Complainant that her job could not be performed at home.
The record contains a letter dated July 10, 1997, in which the
Department of Health and Human Services informs the agency's Labor
Relations Specialist that �in view of the difficulty that [Complainant]
has had in several office buildings, I would propose a transfer for her
... these suggestions are only given from a medical point of view and the
IRS must determine whether it is feasible [and if Complainant] is able
to perform her position at the Main building ... or if [her position]
can be performed at home�. In her formal complaint, Complainant states
that immediately upon receipt of this letter, she unsuccessfully attempted
to secure a transfer consist with the recommendations contained therein.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.; Paredes
v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). The Commission has held that
the utilization of internal agency procedures to resolve a complaint
does not toll the limitations period for seeking EEO counseling.
See Williams v. USPS, EEOC Request No. 05910291 (April 25, 1991).
Further, the Commission has also held that informal efforts to resolve
a dispute do not toll the running of the time limitations period.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989).
Complainant has stated that she contacted an agency EEO Liaison
employee in September 1996, in an effort to seek assistance in securing
an accommodation for an asthmatic condition. On appeal, the agency
acknowledged that Complainant contacted the EEO office �for assistance
in obtaining reasonable accommodation for her medical condition�.
The Commission has held that where there is an issue of timeliness, the
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning
Complainant's complaint, the agency has not met its burden. We have
previously held that when an agency leads a complainant to believe she
must exhaust informal avenues for resolving a complaint of discrimination,
the time frame for contacting a counselor will be tolled. Cunningham
v. United States Postal Service, EEOC Appeal No. 01956079 (June 24, 1996).
We find that the record shows that by letter dated July 10, 1997, the
Department of Health and Human Services advised the agency's labor
relations specialist concerning Complainant's need of a reasonable
accommodation. After no accommodation was provided, Complainant sought
EEO counseling on August 7, 1997, which is well within forty-five
days of appellant's receipt of the letter and her unsuccessful pursuit
of an accommodation consistent with the recommendations contained in
that letter.
Moreover, 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 failed to provide Complainant
with a reasonable accommodation. See Mitchell v. Department of Commerce,
EEOC Appeal No. 01934120 (March 4, 1994). We find that Complainant's
claims involving the denial of reasonable accommodation are in the nature
of a recurring violation, and that her EEO counselor contact was timely.
Accordingly, the agency's final decision is REVERSED and the complaint
is REMANDED for processing accordance with this decision and applicable
regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
Dec. 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________
__________________________________
DATE EQUAL EMPLOYMENT
ASSISTANT 1 On 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 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.