John S. Wise, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 18, 2007
0120065130 (E.E.O.C. May. 18, 2007)

0120065130

05-18-2007

John S. Wise, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John S. Wise, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120065130

Agency No. 1K-201-0030-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision (FAD) dated August 9, 2006, 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.

Complainant claimed that he was subjected to discrimination based on his

religion (Seventh Day Adventist) when beginning November 7, 2004, his

requests for schedule changes to accommodate his religious observation

were routinely denied.

According to the counselor's report, complainant's bid job, with off days

of Friday and Saturday, was abolished on November 7, 2004. His off days

were changed to Wednesday and Thursday. Complainant's new schedule

conflicted with his religious observance of the Sabbath. Complainant

contends that since November 7, 2004, his requests for schedule changes

to accommodate his religious observation have been routinely denied.

The FAD dismissed the complaint on the grounds that complainant failed to

timely seek EEO counseling. It reasoned that the alleged discriminatory

action began on November 7, 2004, but complainant did not initiate contact

with an EEO counselor until May 5, 2006, beyond the 45 calendar time

limit to do so. An aggrieved person must seek EEO counseling within 45

days of the date of the alleged discriminatory action, or in the case of

a personnel action, within 45 days of the effective date of the action.

29 C.F.R. � 1614.105(a)(1).

However, repeated occurrences of the same discrete discriminatory

employment action, such as paychecks, can be challenged so long as one

discriminatory act occurred within the charge filing period. Similarly,

because an employer has an ongoing obligation to provide reasonable

accommodation, failure to do so constitutes a violation each time the

employee needs it. Because each occurrence is a discrete discriminatory

act, however, relief usually will be limited to occurrences within the

filing period. A timely charge also may challenge incidents that occur

after the charge is filed. EEOC Compliance Manual, Section 2: Threshold

Issues, 2-IV.C.1.a., pages 2-73, 2-74 (May 12, 2000, revised on July 21,

2005, available at www.eeoc.gov).

Applying the above principles, we reverse the FAD. All instances where

complainant's religious observance was not accommodated due to conflicts

with his work schedule constitutes an alleged recurring violation

of Title VII. However, the only timely incidents are from March 21,

2006, onward, i.e., those within the 45 day time limit to contact an

EEO counselor and thereafter.

ORDER

The agency is ordered to process the remanded claim in accordance with 29

C.F.R. � 1614.108. The remanded claim is recited in the paragraph above.

The agency shall acknowledge to the complainant that it has received the

remanded claim 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 18, 2007

__________________

Date

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0120065130

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120065130