01991059
10-20-1999
Bernardo Brito, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bernardo Brito v. United States Postal Service
01991059
October 20, 1999
Bernardo Brito, )
Appellant, )
)
v. ) Appeal No. 01991059
) Agency No. 1A-007-0015-98<1>
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On November 17, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 19, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. In his complaint, appellant alleged that he was subjected
to discrimination on the basis of a physical disability when he requested
a specific accommodation but was granted an alternative accommodation.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for the untimely contact of an EEO Counselor.
BACKGROUND
Appellant initiated EEO counseling on April 13, 1998, and thereafter
filed a formal complaint on July 2, 1998, alleging discrimination
based on disability. On December 15, 1997, appellant requested a
transfer from the position of letter carrier to distribution clerk as a
reasonable accommodation for an injured left knee<2>. On January 19,
1998, appellant was transferred to a mail processor position instead.
Appellant asserted that the transfer to the mail processor position
aggravated his condition.
In a FAD dated October 19, 1998, the agency dismissed appellant's
complaint holding that pursuant to 29 C.F.R. � 1614.107(b) he exceeded
the 45-day time limit for contacting an EEO Counselor.
ANALYSIS AND FINDINGS
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
alleged discriminatory act or, in the case of a personnel action, within
forty-five (45) days of the effective date of the action. The Commission
has adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July
6, 1988). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
In this case, appellant accepted and attempted to work in the mail
processor position granted as an accommodation by the agency on January
19, 1998. It is reasonable that appellant realized immediately that
the new position was not the exact position he requested. However,
it is also reasonable that he did not believe the agency's action would
support a charge of discrimination, until he worked in the new position
for some time. Working in the mail processor position made appellant
realize that it had the same physical requirements as his old position
and aggravated his condition.
The time limitation period commenced when appellant began to believe
that he had not been reasonably accommodated and have a reasonable
suspicion of discrimination. The agency's responsibility to provide
reasonable accommodation to an employee with a disability is ongoing.<3>
Accordingly, the agency's decision to dismiss is reversed.
CONCLUSION
It is the decision of the Commission to REVERSE the agency's dismissal.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 20, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant identifies this matter as Agency number 1A-0060-0015-98,
however, the agency indicates that information is incorrect and the
correct agency number is as stated above.
2 In a letter dated May 11, 1998, the U.S. Department of Labor accepted
the condition of appellant's left knee as an occupational disease.
3This decision makes no finding as to whether appellant is a person
with a disability entitled to reasonable accommodation. See 29 C.F.R. �
1630.2(i).