Susan Ripoli, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2005
01a51674 (E.E.O.C. Mar. 29, 2005)

01a51674

03-29-2005

Susan Ripoli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Susan Ripoli v. United States Postal Service

01A51674

03-29-05

.

Susan Ripoli,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A51674

Agency No. 1K-211-0082-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision, dated November 18, 2004, dismissing her 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. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of sex

(Female) and physical disability (Work related) when:

(1) on an unspecified date, she was removed from a limited duty

assignment and instructed to stay in the cafeteria;

(2) on April 29, 2004, she was removed from the limited duty job

assignment given to her in the maintenance office;

(3) on an unspecified date, before she was assigned to Quality

Improvement-CS on May 10, 2004, she was denied a detail assignment in

the Personnel Office; and

from May 10, 2004 to May 13, 2004, she was harassed by co-workers.

The agency dismissed claims (1) through (4) for untimely Counselor

contact, pursuant to 29 C.F.R. � 1614.107(a)(2). It noted that

complainant was familiar with the EEO process, and failed to provide

adequate justification for extending the time limits. The agency also

dismissed claim (4) for failure to state a claim, pursuant to 29 C.F.R. �

1614.107(a)(1).

On appeal, complainant contends that the dismissal of her claims by the

agency was improper because it ignored the allegation that the agency

failed to make a reasonable accommodation to complainant on a continuing

basis since April 29, 2004. She states that the agency's failure to

accommodate her continues until the present because complainant has not

been returned to the limited duty job offer in the maintenance office.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss

a complaint or a portion of a complaint which fails to comply with the

time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved

person is required to initiate contact with an EEO counselor within 45

days of the date of the matter alleged to be discriminatory or, in the

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

action. See 29 C.F.R. � 1614.105(a)(1).

Claims (1) through (3)

Review of the record and complainant's statement on appeal indicate

that complainant viewed the incidents giving rise to claims (1) through

(3) as a failure by the agency to grant a reasonable accommodation.

The record does not indicate, nor does the agency claim, that the

agency specifically denied complainant's request for a reasonable

accommodation, thereby triggering the time limit for initiating EEO

contact. In addition, a review of the record suggests that complainant

is claiming that management never definitively granted or denied her

request for a reasonable accommodation as management moved her from

position to position. Based on these circumstances, the Commission

finds that this matter constitutes a recurring violation, that is, a

violation that recurs anew each day that an employer fails to provide

an accommodation. See Mitchell v. Department of Commerce, EEOC Appeal

No. 01934120 (March 4, 1994). Because the agency's duty to provide a

reasonable accommodation is ongoing, and because there is no evidence

that complainant was put on notice that her request was denied, the

Commission finds that complainant's EEO Counselor contact was timely

with respect to claims (1) through (3).

Claim (4)

The Commission, however, finds that complainant failed to make timely

EEO Counselor contact with respect to claim (4). The alleged harassment

took place frm May 10 through May 13, 2004, but complainant failed to

contact an EEO Counselor until July 14, 2004, approximately 62 days after

the incidents giving rise to her claim. Complainant has presented no

persuasive arguments or evidence warranting an extension of the time

limit for initiating EEO Counselor contact with respect to claim (4).

Therefore, the Commission finds that the agency properly dismissed claim

(4).

For the foregoing reasons, the Commission reverses the agency's dismissal

of claims (1), (2), and (3), and we remand said claims to the agency

for further processing, as specified in the order below. The agency's

dismissal of claim (4) is affirmed.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court within ninety (90) calendar

days from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

____03-29-05______________

Date