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