Fenny Braide, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01991441 (E.E.O.C. Dec. 28, 2000)

01991441

12-28-2000

Fenny Braide, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Fenny Braide v. United States Postal Service

01991441

December 28, 2000

.

Fenny Braide,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01991441

Agency No. 1-C-191-0103-98

DECISION

Complainant filed a timely appeal with this Commission from an

agency decision pertaining to his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>

The Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.

On February 12, 1998, complainant contacted the EEO office regarding

claims of discrimination based on disability. Specifically, complainant

claimed he was �denied reasonable accommodation from the dates and

ongoing.� Informal efforts to resolve complainant's concerns were

unsuccessful. Subsequently, on April 21, 1998, complainant filed a

formal complaint.

The agency issued a decision, dated December 2, 1998, wherein it framed

the claim as follows:

Complainant was allegedly discriminated against on the basis of physical

disability when, by letter dated December 15, 1997, he was denied job

restoration.

Finding that complainant contacted the EEO office approximately 59 days

after the alleged event, the agency dismissed the complaint for untimely

Counselor contact. Further, the agency determined that complainant

offered no evidence to justify extending the time limitation.

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 forty-five (45) days of the date of the

matter alleged to be discriminatory 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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

As a preliminary matter, the Commission finds that the agency misdefined

the complaint. Although in its decision the agency identified the

claim as the denial of job restoration on December 15, 1997, we find,

based upon a review of the record, that complainant raises a reasonable

accommodation claim. In his request for counseling, complainant stated

that he was injured on the job, came back to work and was provided

an accommodation. He stated that after August 4, 1997, however,

he was continuously denied reasonable accommodation. Moreover,

the EEO Counselor noted in her report that �[t]he counselee stated,

he was denied reasonable accommodations....� In his formal complaint,

complainant claimed he was �denied reasonable accommodation or modified

job description...� and the corrective action sought was �reasonable

accommodation.� Therefore, the complainant's claim, as redefined by

the Commission, is whether the complainant was discriminated against

when the agency failed to provide him an 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 fails to provide the

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, it appears that after

complainant filed his complaint, the agency, in a letter dated May 21,

1998, requested that he clarify the exact dates he was denied reasonable

accommodation. However, complainant's response is not contained in the

record. The Counselor's Report states that complainant �establish[ed]

one date of December 15, 1997.� Based on a review of the record, however,

we find that several other dates were provided and complainant asserted

that the accommodation denial was �ongoing.� Consequently, we find that

the record is not sufficiently clear regarding the date or dates when

complainant requested reasonable accommodation and the agency's response.

As we are unable to make a determination regarding the propriety of the

agency's dismissal of complainant's claim, we will vacate the agency's

decision and direct it to conduct a supplemental investigation on

the matter.

Accordingly, the agency's decision to dismiss complainant's complaint is

VACATED. The complaint is REMANDED to the agency for further processing

in accordance with this decision and the Order below.

ORDER

The agency is ORDERED to conduct a supplemental investigation to

obtain documentary evidence, or evidence in the form of affirmations or

affidavits, including a statement from complainant if needed, regarding:

(1) the exact dates of every request by complainant for reasonable

accommodation;

(2) the substance of the reasonable accommodation request(s);

(3) the specifics of complainant's alleged disability;

(4) the identity of the person or persons to whom the request(s) was made;

(5) the dates and contents of each and every response to the request(s).

Thereafter, the agency shall issue a new final decision or notify

complainant that it is processing the complaint. The supplemental

investigation and issuance of the final decision or notice of processing

must be completed within thirty (30) calendar days of the date that this

decision becomes final.

A copy of the agency's new final decision or notice of processing must

be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (R0900)

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

December 28, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.