01993917
05-16-2000
Domanique Dixon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Domanique Dixon, )
Complainant, )
)
v. ) Appeal No. 01993917
) Agency No. 4-E-800-0114-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 19, 1999 decision dismissing
the complaint on the grounds of failure to state a claim and untimely
EEO counselor contact, is not proper pursuant to the provisions of 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.107(a)(1) and (2)).<1>
The record shows that Complainant sought EEO counseling on December 21,
1998, claiming that she had been discriminated against on the bases of
race, sex, and physical disability when: (1) on December 21, 1998, she
was written up for sleeping in the maintenance area break room<2>; and,
(2) she became aware that limited duty assignments were to be given
by the Safety Office and her assignment was not within her medical
restrictions.
Subsequently, Complainant filed a formal complaint claiming that she
had been discriminated against on the basis of physical disability when:
(1) on December 18, 1998, she was approached by a Postal Security Officer
and written up for sleeping in the maintenance area break room; and
(2) on an unspecified date, she became aware that her limited duty
assignments were given to her by the Safety Office and were not within
her medical restrictions.
The agency issued a final decision dismissing claim (1) for failure to
state a claim. The agency determined that while Complainant was written
up by a security officer for sleeping on the job, her supervisor gave
her a discussion for being out of her work area based on the security
officer's report. The agency noted that the official discussion did
not render Complainant aggrieved.
Concerning claim (2), the agency found that Complainant's initial EEO
Counselor contact on December 21, 1998, was not timely. The agency noted
that by letter dated August 32 (sic), 1998, Complainant had informed the
Senior Injury Compensation Specialist that �the assignment that was found
for me is not within all of my restrictions ... I feel that I am not
being accommodated reasonably�. The agency concluded that Complainant
was aware of the situation since August 31, 1998, but failed to seek
counseling until December 21, 1998, �67 days after expiration of the
requisite 45 days time limit�.
The Commission determines that the agency improperly dismissed claim
(1). The record shows that after a postal security officer observed
Complainant sleeping, he made a written report about his contact with
Complainant, which caused Complainant's supervisor to give her an
official discussion concerning the incident. The Commission has held
that official discussions alone do not render an employee aggrieved.
See Devine v. USPS, EEOC Request No. 05910269 (April 4, 1991). However,
the record shows that a postal security officer made a written record of
the December 1998 incident in which he stated that he observed Complainant
sleeping on the job. We find that the written report triggered an
official discussion between Complainant and her supervisor. Moreover,
the record does not provide evidence sufficient to determine that said
report, which has memorialized the discussion concerning sleeping on
the job, has not been recorded in any personnel or supervisory files
concerning Complainant. Based on the foregoing, we find that claim (1)
was improperly dismissed for failure to state a claim.
We find that the dismissal of claim (2) was also not appropriate.
The record shows that as early as August 31, 1998, Complainant was
aware that the assignment in question was not within all of her
restrictions and felt that she had not been reasonably accommodated.
After no accommodation was provided, Complainant sought EEO counseling on
December 21, 1998. 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
Complainant with a reasonable accommodation. See Mitchell v. Department
of Commerce, EEOC Appeal No. 01934120 (March 4, 1994). We find that
Complainant's claim involving the denial of reasonable accommodation
is in the nature of a recurring violation, and that her EEO Counselor
contact was timely. Accordingly, the dismissal of the complaint was not
proper and is hereby REVERSED. The complaint is REMANDED for further
processing in accordance with this decision and applicable regulations.
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.
2 The record shows that the Postal Security Officer wrote a statement
dated December 21, 1998, in which he stated that he had observed
Complainant sleeping in the maintenance area break room.