0120100875
06-03-2010
Joe A. Gonzales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Joe A. Gonzales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120100875
Agency No. 1H391002709
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the agency's decision dated November
19, 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.
In his complaint, complainant, a mail processing equipment mechanic,
alleged that he was subjected to discrimination on the bases of race
(Latino), disability (sleep apnea, stress, depression), and reprisal
for prior protected EEO activity when:
1. by letter dated February 13, 2009, he was notified that henceforth
instead of sick leave he was required to take annual leave or leave
without pay (LWOP) when he arrived to work late,
2. his requests for a schedule change were not approved by the Maintenance
Manager [complainant attached disapprovals of requests, the most recent
of which was to change his schedule during May 18, 2009 to January 15,
2010 from 7:30 AM to 4 PM, to 8:30 AM to 5 PM].1
The record has a slip from complainant's physician dated January 27, 2009,
asking that the agency maintain complainant's schedule of 8 AM to 4:30
PM; and a September 4, 2009, request by another of his physicians that he
maintain this same schedule. Complainant started seeing a psychologist,
who wrote a letter dated April 28, 2009, that complainant reported
that his changed start time of 8:30 AM was helping considerably.
She opined that his request for the reasonable accommodation of
a flexible start time in the 30 to 90 minute range was reasonable,
suggesting this would help with his sleep apnea and the side effects of
his antidepressant medication. With his Information for Pre-Complaint
Counseling form (intake form) received by the EEO office in September
2009, complainant wrote that he received the temporary accommodation of
a schedule of 8:30 AM to 5 PM, but never got written verification by the
reasonable accommodation committee (RAC) that his accommodation request
was approved.
According to the counselor's report, complainant raised the claim that
he was discriminated against when he did not receive a written decision
within 20 days of the RAC meeting on April 17, 2009. The counselor
contacted the manager of labor relations who stated that the supervisor
of maintenance verbally approved complainant's accommodation request for
a schedule change, that he was not entitled to a written confirmation, and
it was his responsibility to provide medical updates so the accommodation
continued.
In its final decision, the agency characterized the complaint as alleging
discrimination when from April 2009 to the present, complainant did not
receive a written decision from RAC. The agency dismissed the complaint
for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned
that complainant was not harmed because it granted the accommodation of
the schedule change he requested.
On appeal, in a corrected statement, complainant writes that on April
14, 2009, the agency temporarily changed his schedule to the hours of
8:30 AM to 5 PM, while awaiting a decision from RAC. He writes that in
2009 he repeatedly asked for the accommodation of a ninety minute slide
and glide start time and end times (7:30 AM to 9 AM; 4 PM to 5:30 PM),
but it was not granted. Complainant writes that in November 2009, the
supervisor of maintenance told him he had to decide on a start time
of 8 AM or 8:30 AM, but complainant contends this was an inadequate
accommodation because some nights are worse than others, and he needs
the flexibility of slide and glide.
On appeal, complainant also writes that the agency breached a settlement
agreement dated March 13, 2007, which closed prior complaint number
1H391000807. The settlement agreement provided that complainant could
change Family Medical Leave Act (FMLA) approved absences from annual
leave to sick leave or LWOP, if he desired. Complainant writes that
he gave the EEO Manager a notice of breach on May 4, 2007, and the
agency responded on July 10, 2007. A review of the July 10, 2007,
response indicates it was a final agency decision, appealable to the
EEOC, finding no breach. The Commission has no record of complainant
filing an appeal from this final decision. It appears complainant is
contending that regarding claim 1, in addition to not accommodating him,
the agency again breached the settlement agreement.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant alleged in his complaint that he was denied modifications
to his work schedule, resulting in him being charged annual leave, sick
leave, and LWOP; and his being charged, at times, annual leave and LWOP
instead of sick leave. The agency contends that it changed complainant's
schedule, as requested, and complainant on appeal disputes this.
Despite questions about the significance of the start times complainant
requested and received, it is clear complainant was alleging in his
complaint he was denied modifications to his work schedule that would
accommodate his disabilities, resulting in him being charged annual leave,
sick leave, and LWOP; and his being charged, at times, annual leave and
LWOP instead of sick leave. On appeal, complainant clarifies that the
accommodation he requested was a ninety minute slide and glide start
and end times (7:30 AM to 9 AM; 4 PM to 5:30 PM). Complainant's claim
that he was denied a modified work schedule which would accommodate his
disabilities states a claim of harm.
Complainant initiated contact with an EEO counselor on September 9,
2009. An aggrieved person must seek EEO counseling within 45 days
of the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1).
Because an employer has an ongoing obligation to provide reasonable
accommodation, failure to do so constitutes a violation each time the
employee needs it. Because each occurrence is a discrete discriminatory
act, however, relief usually will be limited to occurrences within the
filing period. A timely charge also may challenge incidents that occur
after the charge is filed. EEOC Compliance Manual, Section 2: Threshold
Issues, 2-IV.C.1.a., pages 2-73, 2-74 (May 12, 2000, revised on July 21,
2005, available at www.eeoc.gov). In light of the fact complainant had
a prior EEO administrative case, it is more likely than not that he was
aware of the 45 calendar day time limit.
Applying the above, we find that the live claim in complainant's complaint
is that he was discriminated against when from July 26, 2009, onward,
he was denied modifications to his work schedule that would accommodate
his disabilities, resulting in him being charged annual leave, sick
leave, and LWOP; and his being charged, at times, annual leave and LWOP
instead of sick leave.2 The order below requires the agency to process
this claim.
ORDER
The agency is ordered to process the claim that complainant was
discriminated against based on his race (Latino), disability (sleep apnea,
stress, depression), and reprisal for prior protected EEO activity
when from July 26, 2009, onward, he was denied modifications to his
work schedule that would accommodate his disabilities, resulting in him
being charged annual leave, sick leave, and LWOP; and his being charged,
at times, annual leave and LWOP instead of sick, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (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 (S0408)
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. 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 3, 2010
__________________
Date
1 These claims were gleaned from complainant's submissions to the EEO
office at intake and his complaint.
2 If complainant is also claiming breach of the settlement agreement
that occurred after his initial claim of breach on May 4, 2007, he should
notify in writing the agency Manager, EEO Compliance and Appeals of the
alleged breach, as set forth in the settlement agreement. This also
follows the dictates of 29 C.F.R. � 1614.504.
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0120100875
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100875