Ava A. Williams, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area) Agency.

Equal Employment Opportunity CommissionSep 25, 2000
01993525 (E.E.O.C. Sep. 25, 2000)

01993525

09-25-2000

Ava A. Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area) Agency.


Ava A. Williams v. United States Postal Service

01993525

September 25, 2000

.

Ava A. Williams,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Allegheny Area)

Agency.

Appeal No. 01993525

Agency No. 4-C-190-0223-97

DECISION

On March 25, 1999, the complainant filed a timely appeal with this

Commission of the agency's February 25, 1999 final decision which

dismissed her complaint on the grounds of untimely EEO Counselor contact,

pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656

(1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(a)(2)).<1> The Commission accepts the appeal in accordance

with 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �

1614.405).

In its final decision, the agency defined the claims of the complaint

as whether the complainant was discriminated against on the basis

of her physical disability (epilepsy) when: (1) the complainant's

supervisor stated that there was no work available for the complainant

after scheduling her to work in the Data Site during January 1997;

(2) on February 22, 1997, the complainant sent a certified letter to

her supervisor stating that she would accept the temporary position

as a secretary in the Finance Department and on February 25, 1997,

she received a letter from her supervisor stating that the temporary

position had been filled; (3) on April 7, 1997, the complainant received

a letter from her supervisor stating that she needed to provide medical

documentation or make arrangements for a meeting with her to determine

if any work was available; and (4) on April 23, 1997, she was denied

employment by her supervisor. In dismissing the entire complaint, the

agency stated that because the complainant did not initiate contact with

an EEO Counselor until June 13, 1997, the contact was beyond the 45-day

limitation period and was, therefore, untimely.

In her January 14, 1999 complaint, the complainant alleged that on April

7, 1997, she was discriminated against when the following occurred:

Treated differently from other employees due to my disability. Supervisor

[A] stated that I should go out on disability and she also stated that

it (sic) was no work available after scheduling me to work in the Data

Site for 3 days during the month of January, 1997. Had I not applied

for unemployment in June, 1997, Supervisor [A] would have continued to

discriminate against me by denying a job that met the restrictions from

my Doctor and the Postal Medical Unit.

The record reveals that the complainant worked for the agency as a

�PSD� technician. The Counselor's Report reflects that on October 25,

1996, the complainant had a seizure at work. The complainant returned

to work on January 3, 1997, with restrictions from her physician.

She stated that she was told that there was no work available for her.

The Counselor's Report also discloses that Supervisor A informed the EEO

Counselor that when the complainant returned to work on January 3, 1997,

she could not accommodate her. The Counselor's Report also indicates

that the complainant was offered a light duty position but she refused.<2>

The Counselor's Report further reveals that Supervisor A informed the EEO

Counselor that the complainant was next offered a light duty position

as a manager's secretary, and that although she accepted the position,

she failed to report to work on February 18, 1997, as instructed.

The Counselor's Report reveals that in a meeting on April 23, 1997,

Supervisor A told the complainant that she had no work that could

accommodate her restrictions.

An April 4, 1997 letter to the complainant from the agency reflects

that the complainant was cleared by the agency in January 1997 to return

to duty and that the complainant stated that she could not perform her

usual duties as a PSD technician and requested instead to work in the

Data Site control center. Also contained in the record is the June

13, 1997 Information for Precomplaint Counseling, which indicates that

the complainant contacted an EEO Counselor on that date and which also

reflects that the complainant stated that the agency did not provide

her with work within her restrictions.

The record also contains a June 23, 1997 letter from the agency to the

complainant and a June 26, 1997 letter from the complainant to the agency

which reflect that the complainant was offered a position in Main Office

Delivery which met her restrictions and that the complainant accepted

the offer.

In a February 2, 1999 letter from the complainant to the EEO Counselor,

the complainant stated that she sent a letter to Supervisor A on February

22, 1997, accepting the manager's secretary position and on February 25,

1997, she received a letter from Supervisor A stating that the position

was filled.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity 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.

As an initial matter, the Commission finds that the agency misdefined

the complaint. Although in its final decision, the agency identified

four separate claims, we find, based upon review of the complaint

itself and the record as a whole, that the complaint raises a reasonable

accommodation claim. Accordingly, the complaint's claim, as redefined

by the Commission, is whether the complainant was discriminated

against when the agency failed to honor her request for a reasonable

accommodation. The Commission has held that a failure to provide a

reasonable accommodation may constitute a recurring violation, that is,

a violation that recurs anew each day that the agency failed to provide

the complainant with a reasonable accommodation. See Harman v. Office

of Personnel Management, EEOC Request No. 05980365 (November 4, 1999);

Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (March 4,

1994). Here, the complainant is alleging that she was not accommodated

by the agency for her disability from January 1997. Consequently, the

agency's alleged violation recurred each day that it failed to provide

her with a reasonable accommodation. Therefore, the Commission finds

that the complainant's EEO Counselor contact on June 13, 1997, regarding

the agency's failure to accommodate her, was timely.

Consistent with the foregoing discussion, the agency's dismissal of

the complaint is REVERSED and the complaint is REMANDED to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

September 25, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The Counselor's Report does not indicate when the complainant was

offered the position.