0120091444
06-18-2009
Bobbie Woods, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bobbie Woods,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091444
Agency No. 1F-941-0054-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 15, 2009, 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. Upon review, the Commission finds
that complainant's complaint was improperly dismissed, in part, pursuant
to 29 C.F.R. �� 1614.107(a)(1) & (2).
On August 25, 2008, complainant initiated EEO contact alleging that
the agency discriminated against him on the bases of race (Black) and
disability (Muscular Dystrophy) when it denied him accommodation by (a)
failing to provide an appropriate workstation chair since October 2007,
(b) failing to properly process his leave under the Family and Medical
Leave Act (FMLA) since March 1, 2008, (c) removing him from 204-B (acting
supervisor) status on June 27, 2008, and (d) seeking to change his
non-scheduled days without regard for his impairment since June 1, 2008.
Initially, the agency accepted (a) for investigation, and then
dismissed (b) and (d) for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1) and (c) for untimely EEO contact pursuant to
29 C.F.R. � 1614.107(a)(2). Then, in its January 15 final decision,
the agency rescinded its acceptance of (a) and dismissed it for untimely
EEO contact. The instant appeal from complainant followed.
On appeal, complainant stated that (a) between October 2007 and when he
went on an injury-related leave in October 2008, the agency failed to
provide him a chair that met his physician's requests, (b) he submitted
his FMLA application to his manager and the manager failed to process
the application in a timely manner, (c) the agency provided him the
accommodation of working in a 204-B position from 2005 to June 27,
2008, when it failed to give him an alternate position or duties.
Complainant withdrew (d) as an issue. Further, as to the timeliness
of (a), complainant stated that he continuously asked the agency for
a different chair than the one provided in October 2007, to no avail,
so the discrimination was recurring. As to the timeliness of contact
for (c), complainant stated that, on July 28, 2008, he called both
the agency's San Francisco EEO Office and National EEO Headquarters
twice as evidenced by an attached telephone bill and that the bill
shows further that he contacted both offices again on August 25, 2008.
Complainant stated that he made the August calls when he did not receive
the EEO materials he requested on July 28. Further, complainant stated
that the denial of accommodation recurred daily because the agency failed
to provide him another position or duties.
Here, we find that the agency improperly dismissed complainant's
complaint, in part. We conclude that the gist of complainant's claim
is that the agency failed to provide accommodation when it took the
actions alleged in (a) and (c). The question as to whether an employee
is aggrieved requires a consideration of whether the employee alleged
unlawful discrimination regarding hiring, termination, compensation,
or other terms, conditions, or privileges of employment. Cobb v. Dep't
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Terms,
conditions, or privileges of employment include, among other things,
promotion, demotion, discipline, reasonable accommodation, appraisals,
awards, training, benefits, assignments, overtime, leave, tours of duty,
etc. Id. Based on the above, we find that complainant states a claim
with respect to these matters. Alternatively, we agree that complainant
failed to state a claim as to (b), concerning the processing of his FMLA
request.
As to the timeliness of (a) and (c), the record does not indicate,
nor does the agency claim, that the agency specifically denied
complainant's request for a reasonable accommodation on a particular
date. In addition, a review of the record suggests that complainant
is claiming that management never definitively granted or denied
his request for a reasonable accommodation as management failed to
provide an appropriate chair or another position/other duties within
his medical restrictions. 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. Dep't 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 his request was denied, the
Commission finds that complainant's EEO Counselor contact was timely
with respect to the actions alleged in (a) and (c).
After careful review of the record, we REVERSE the agency's decision as to
(a) and (c) and REMAND those matters to the agency for further processing
as denial of reasonable accommodation, and AFFIRM the agency's dismissal
of (b). As stated above, complainant withdrew (d).
ORDER (E0408)
The agency is ordered to process the remanded claims (a) and (c) 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 18, 2009
__________________
Date
2
0120091444
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091444