Joanne Reiley, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01970323 (E.E.O.C. Jan. 28, 1999)

01970323

01-28-1999

Joanne Reiley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joanne Reiley v. United States Postal Service

01970323

January 28, 1999

Joanne Reiley, )

Appellant, )

)

v. ) Appeal No. 01970323

) Agency No. 4C-175-1059-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

For the reasons set forth below, the Commission sets aside the agency's

September 10, 1996 final decision (FAD), which dismissed appellant's

July 16, 1996 formal EEO complaint for untimely EEO Counselor contact,

in accordance with 29 C.F.R. �1614.107(b), in pertinent part. The agency

has raised no new contentions in response to appellant's appeal to reach

a contrary result.<1>

The FAD defined appellant's complaint as alleging discrimination based

on physical disability (cerebral palsy and hearing impaired), when:

(1) approximately 3-4 years ago, appellant was denied an interpreter

which she requested to help her do her job better, and

(2) appellant was denied conversion to regular (full-time) status through

contract grievance procedure decisions first made in May-June 1995.

The FAD found appellant's February 21, 1996 EEO Counselor contact

to be well beyond the applicable time limitation of 45 days, as set

forth at 29 C.F.R. �1614.105(a)(1). We disagree, and find the agency's

application of the "reasonable suspicion" standard inapplicable to the

present case. Under this standard, the time period for contacting an EEO

Counselor is triggered when the complainant should reasonably suspect

discrimination, but before all the facts that would support a charge of

discrimination may have become apparent. Cochran v. U.S. Postal Service,

EEOC Request No. 05920399 (June 18, 1992).

We find that the agency has too narrowly defined appellant's complaint. We

find, from a fair reading of appellant's complaint and the record as a

whole, appellant is alleging that the agency unlawfully failed to provide

her with reasonable accommodation for her disabilities by continuing to

deny her regular access to a certified interpreter so appellant could

effectively understand information being presented to her. We find

this allegation related to appellant's additional claims that lack of an

interpreter resulted in appellant's being passed over for training and

opportunities to advance, including being converted from a part-time

flexible employee to a regular full-time employee. The Commission

has held that an agency's failure to provide reasonable accommodation

begins when a complainant "first put the agency on notice of her need

for an accommodation and each day that the agency fails to provide an

accommodation constitutes a recurring violation." Mitchell v. Department

of Commerce, EEOC Appeal No. 01934120 (March 4, 1994).

The FAD is hereby VACATED, and appellant's complaint is hereby REMANDED

for further processing at the point at which processing ceased,

consistent with the Commission's decision and applicable regulations.

The parties are advised that this decision is not a decision on the

merits of appellant's complaint. The agency is directed to comply with

the Commission's ORDER set forth below.

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 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 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 acknowledgement 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:

January 28, 1999

DATE Ronnie Blumenthal, Director

1In the absence of evidence as to when appellant received the FAD, we

have accepted her appeal as timely.