0120064553
01-10-2007
Selvie Burris III, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Selvie Burris III,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200645531
Agency No. 06-67001-01219
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dismissing his formal 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On April 28, 2006, complainant first initiated contact with an agency
EEO Counselor. After informal efforts to resolve complainant's concerns
were unsuccessful, complainant filed the instant formal complaint on May
31, 2006. Therein, complainant claimed that he was discriminated on the
bases of race (African-American) and disability (bilateral congenital
synostosis) when:
he was not laterally moved during the reduction-in-force (RIF) of June
2005, to a GS-1101-09 Supply Contract position.
The record reflects that, as a result of the RIF, complainant was
reassigned to the position of a Pipefitter/AC Mechanic, WG-8. He alleged
that other former A/C Mechanics were reassigned to GS-9 levels. Moreover,
complainant claimed that following his RIF reassignment, he "was never
put on the medical accommodation list even after being on Workman Comp."
As a result, he alleged he was given jobs he could not physically perform
and which were against his doctor's orders.2
On June 20, 2006, the agency issued the instant final decision. Therein,
the agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that complainant sought EEO counseling on April
28, 2006, regarding events that the agency determined occurred on March
21, 2005. Specifically, the agency concluded that complainant became
aware of the alleged discriminatory event when he received the RIF
notice of reassignment on March 21, 2005. The agency further stated
that complainant had a discussion with a Supervisory HR Specialist in
March 2005 concerning his medical condition and his RIF placement, and
that the HR Specialist informed complainant "that he was not on the list
of employees being medically accommodated."
The agency also concluded that complainant was aware of the alleged
discriminatory event when he initiated a Congressional Inquiry concerning
his belief that he was not being medically accommodated during the RIF.
The agency stated that the record reflects that in his response to
the Congressional Inquiry dated September 8, 2005, the Director of
Manpower stated that the Human Resources Office was unaware of any
medical limitations or accommodations when the first iteration of the
RIF was documented. Based on these facts, the agency concluded that
the initial EEO contact was beyond the forty-five day time limit.
The Commission determines that a fair reading of the instant complaint
reflects that complainant has, in essence, raised a claim of improper
denial of a request for reasonable accommodation. The record also
reflects that complainant alleges that his request for a position within
his medical restrictions was denied by the agency despite the ongoing
nature of complainant's alleged need for the accommodation. Accordingly,
this claim should be viewed as a recurring violation. Specifically,
the EEOC Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC
Notice 915.003 (July 21, 2005), provides that because an employer has
an ongoing obligation to provide a reasonable accommodation failure to
provide such accommodation constitutes a violation each time the employee
needs it." Furthermore, the Commission has specifically held that the
denial of reasonable accommodation constitutes a recurring violation that
repeats each time the accommodation is needed. See Harmon v. Office
of Personnel Management, EEOC Request No. 05980365 (November 4, 1999).
Therefore, viewed as a recurring violation, the Commission finds that
complainant's EEO Counselor contact is timely as to his reasonable
accommodation claim, and that the agency improperly dismissed it.
Accordingly, the agency's final decision dismissing complainant's
complaint the grounds of untimely EEO Counselor contact is REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (denial of request
for reasonable accommodation) in accordance with 29 C.F.R. 1614.108.
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
January 10, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record reflects that on March 15, 2005, complainant was accepted
under the Office of Workers' Compensation Programs due to an on-the-job
injury that occurred on December 20, 2004. The record further reflects
that on May 17, 2005, the office of complainant's physician sent a
letter to agency management stating that complainant had tenosynovitits,
which was related to his permanent congenital synostosis (fusion of
the bones of the forearms). The physician's office stated that the
tenosynovitis might occasionally flare up, causing complainant limited
ability to use hand tools that require significant twisting or torquing,
and that complainant was not to lift anything greater than 25 pounds.
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0120064553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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