01996968
03-23-2001
Miguel Nazario-Acosta, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Western Area) Agency.
Miguel Nazario-Acosta v. United States Postal Service
01996968
March 23, 2001
.
Miguel Nazario-Acosta,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01996968
Agency No. 4E-995-0029-99
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning 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 � 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges that he was discriminated against on the bases of National origin
(Hispanic), retaliation, and disability (lung cancer) when on February
16, 1999, and thereafter, he was not allowed to work after incurring an
accident at work due to dust.
For the following reasons, the Commission VACATES and REMANDS the agency's
final decision.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's General Mail facility
in Anchorage, Alaska. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on July 22, 1999. The agency dismissed the complaint prior
to investigation on the grounds that complainant did not contact an
EEO counselor until May 27, 1999, which is beyond the forty-five (45)
day limitation period under EEOC regulations. From this decision,
complainant appeals.
After a thorough review of the record, we find that complainant's
counselor contact was not untimely. We note that on the date complainant
sought counseling, officials were still not permitting him to return
to work. In addition, the record reflects that complainant contends that
management's refusal to permit him to return to work was based on their
alleged inability to accommodate his disability. We therefore vacate
the agency's finding of no discrimination, and remand this matter for
a supplemental investigation in accordance with the following ORDER,
and the applicable EEOC Regulations.
ORDER
The agency is ORDERED to conduct an investigation of complainant's claim.
The agency shall ensure that the investigator obtain any other affidavits,
records or statistics not specifically requested in this ORDER, and not
inconsistent with this opinion, which may be relevant in determining the
veracity of complainant's complaint allegations. The agency shall ensure
that the investigator complete the supplemental investigation within
one-hundred and twenty (120) calendar days of the date this decision
becomes final. Thereafter, the agency shall provide the complainant,
within thirty (30) calendar days from the date the agency completes the
supplemental investigation, an opportunity to respond to the supplemental
investigative report. The agency shall then take any action appropriate
and consistent with complainant's response, and issue a new final agency
decision within thirty (30) calendar days of complainant's response
or, if complainant fails to respond, within thirty (30) calendar days
following the last day complainant would have been permitted to respond.
Copies of the completed supplemental investigation and new final agency
decision must be submitted to the Compliance Officer, as referenced below.
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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 23, 2001
__________________
Date