01A43361_r
10-29-2004
Kevin M. McGreevy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kevin M. McGreevy v. United States Postal Service
01A43361
October 29, 2004
.
Kevin M. McGreevy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43361
Agency No. 4A-117-0121-03
DECISION
Complainant filed an appeal with the Commission from a March 18,
2004 agency decision dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact and, alternatively,
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant alleged that he was discriminated against on the bases of
race (White), national origin (not specified), sex (male), color (not
specified), disability, and age (D.O.B. May 24, 1959). The agency defined
the issues of the complaint as: (1) since November 12, 2002, complainant
was denied a reasonable accommodation resulting in his loss of pay; and
(2) on (no dates provided), complainant's request for a change of craft
was denied.
In dismissing the complaint for failure to state a claim, the agency
noted that complainant failed to adhere to 29 C.F.R. � 1614.106(c) which
requires that a complaint contain a statement that is sufficiently precise
to identify the aggrieved individual and to describe generally the actions
or practices that form the basis of the complaint. The agency determined
that because complainant failed to do so, he also consequently failed to
articulate how he suffered a harm with respect to a term, condition, or
privilege of his employment. In dismissing the complaint on the grounds
of untimely EEO Counselor contact, the agency stated that complainant's
contact with an EEO Counselor on July 16, 2003, was beyond the 45-day
time limitation period and that complainant had not demonstrated that
the time period should be extended.
As an initial matter, the Commission finds that the agency has misdefined
complainant's complaint by fragmenting the complaint into two separate
claims. Here, what complainant is challenging is the agency's failure to
provide him with a reasonable accommodation. We find that the complaint
states a claim because the allegation constitutes a personal deprivation
sufficient to render complainant aggrieved. Accordingly, the agency's
dismissal for failure to state a claim was improper. Although the
agency states in its dismissal that the complaint lacked specificity,
there is no record that the agency attempted to have complainant clarify
his complaint. Without such an attempt we find that in the instant
circumstances it would be improper to dismiss the complaint for lack
of specificity.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) further provides that the
agency or the Commission shall extend the time limits when an individual
shows that he or she was not notified of the time limits and was otherwise
unaware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or
the Commission.
In his complaint, complainant stated that the alleged discrimination
occurred from November 12, 2002, to February 24, 2004. The EEO
Counselor's Report reveals that complainant initiated EEO Counselor
contact on July 16, 2003.
Concerning the timeliness of EEO Counselor contact, we find that
the agency's dismissal was improper. There is no evidence that
complainant's request for an accommodation was expressly denied.
Because the record does not establish that the agency specifically
denied complainant's requests for a reasonable accommodation, thereby
triggering the time limit for timely EEO Counselor contact, we find that
complainant's requests constitute a recurring violation and, therefore,
complainant's EEO Counselor contact was timely. The Commission has held
that the 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 it. See Moore v. United States Postal
Service, EEOC Appeal No. 01A34361 (February 19, 2004).
Accordingly, the agency's dismissal of the complaint is REVERSED and
the complaint, as defined in this decision, is REMANDED to the agency
for further processing.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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
October 29, 2004
__________________
Date