01a55742
02-22-2006
Alfred B. Charles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alfred B. Charles v. United States Postal Service
01A55742
02-22-06
.
Alfred B. Charles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55742
Agency No. 1A 111 0028 05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 29, 2005, dismissing 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of race (Black),
national origin (Guyanese), and disability when, on January 17, 2003,
management denied him the right to work in a Limited Duty Status.
The agency dismissed complainant's complaint for untimeliness, pursuant
to 29 C.F.R. �� 1614.107(a)(2); 105(a)(2). Specifically, it found that
complainant did not contact an EEO Counselor until February 25, 2005,
over two years beyond the 45 day time limit.
On appeal, complainant contends that the agency has been discriminating
against him on an ongoing basis from January 17, 2003 to June 24, 2005.
He asserts that he was unaware of the discrimination, and made contact
with a Counselor once he became aware that three employees were working
on �light duty� in the tour office.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the Equal Employment
Opportunity 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.
However, an agency or the Commission shall extend the time limits when the
individual shows that: he was not notified of the time limits and was not
otherwise aware of them; that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred;
that despite due diligence he was prevented by circumstances beyond his
control from contacting the Counselor within the time limits; or for
other reasons considered sufficient by the agency or the Commission.
29 C.F.R. � 1614.105(a)(2).
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for
untimely EEO contact. The record reveals that the agency denied two of
complainant's requests for Limited Duty Status on or around March 2003 and
on or around December 2004. Counselor's report, p. 3. At the time that
the agency denied complainant's requests, he was reasonably on notice of
the denial, and should have sought EEO counseling at the time of denial.
However, shortly after complainant's February 25, 2005 EEO contact,
complainant submitted a third request for Limited Duty Status, dated March
29, 2005. In that request, he stated that he was fit to return to work
in Limited Duty Status on April 5, 2005. Id. According to management,
that request was denied. Id. Since complainant had one month earlier
sought EEO counseling on what he believed to be ongoing discrimination,
he cannot be expected to seek counseling on this third denial of Limited
Duty Status because he viewed it as part of the same incident. We find
that, after seeking EEO counseling on February 25, 2005 for failure to
receive Limited Duty, complainant reasonably anticipated that his March
29, 2005 request for said status would be part of the subject complaint.
We note in this regard that complainant filed his formal complaint on
June 30, 2005, well after his March 29, 2005 request was denied.<1>
Accordingly, complainant's claim that management denied his March 29,
2005 request is timely. The issue therefore is whether complainant
was discriminated against on the bases of race, national origin, and
disability when management denied his March 29, 2005 request to work in
a Limited Duty Status.
For the reasons set forth above, we reverse the agency's dismissal of
complainant's complaint, and we remand the complaint to the agency for
further processing, as specified in the order below.
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
_____02-22-06_____________
Date
1 We note that the agency eventually
granted complainant's request for Limited Duty on June 25, 2005.
See Formal Complaint.