Brian T. Kirchner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01a02349 (E.E.O.C. May. 16, 2000)

01a02349

05-16-2000

Brian T. Kirchner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Brian T. Kirchner v. United States Postal Service

01A02349

May 16, 2000

Brian T. Kirchner, )

Complainant, )

)

v. ) Appeal No. 01A02349

) Agency No. 1-J-482-0028-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The complainant timely filed an appeal with this Commission from a final

agency action, dated December 30, 1999, which the agency issued pursuant

to 29 C.F.R. �1614.107.<1> The Commission accepts the complainant's

appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405).

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to REVERSE the final agency action.

The agency dismissed the complaint for failure to prosecute on the ground

that the complainant had failed to respond to three requests to define

the issue raised in his complaint. The record demonstrates that the

agency had sufficient information in the EEO Counselor's Report to define

the issue raised in the April 7, 1999 complaint. The Report indicates

that the complainant alleged discrimination on the basis of physical

disability (type 1 diabetes) when, on January 18, 1999, he was called

into his supervisor's office and told he could no longer attend to his

diabetic needs (testing blood, injecting insulin) while on the clock.

The Commission finds that the agency did not require any additional

information to define the issue raised in the complaint, that is, the

alleged failure of the agency to provide a reasonable accommodation for

the complainant's disability. For this reason, the Commission reverses

the final agency action.

The Commission also observes that the agency's request letters did not

request that the complainant define the issue raised in his complaint.

Rather, they requested that he provide an affidavit responding to every

question and every subpart of every question listed on three pages of

small type face. The agency's second and third requests informed the

complainant that he would have a reasonable amount of official time to

prepare his response.

According to an acting supervisor's affidavit, the complainant requested,

and the acting supervisor authorized, only 45 minutes to an hour of

official time to meet with his representative in mid or late November

1999. In contrast, on appeal the complainant contends that the agency

denied his repeated requests for official time to respond to the agency's

requests. The record does not indicate whether the agency required the

complainant to request official time from his supervisor or from the

EEO Office. Without such information, the Commission cannot conclude

that the complainant failed to request official time to respond to the

agency's request for a detailed affidavit.

On remand, the agency should grant the complainant official time to meet

with his representative to respond to the agency's affidavit requests.

The agency may choose to determine the amount of official time it will

grant based on the amount of detailed information the complainant provides

in response to the questions. However, it appears that it would take

three hours or more to provide even minimal responses to the agency's

questions, plus additional time to have the affidavit notarized as a

written declaration made under oath or affirmation, and time to obtain

the requested medical evidence.

The complainant is advised that he should respond to the agency's requests

for information even if the agency denies him what he believes to be a

reasonable amount of official time for himself and his representative.

The agency shall include in the record copies of the complainant's written

requests for official time and the agency's written responses to each

of his requests, including an explanation for any denial of requested

official time. The complainant may challenge any denials of official

time when he requests a hearing before an Administrative Judge and in

an appeal to this Commission of a final agency action on his complaint.

ORDER (E0400)

The agency is ORDERED to process the remanded claims 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:

May 16, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that the

decision was mailed to the complainant, the complainant's representative,

and the agency on:

DATE Equal Employment Assistant

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.