01991589
11-08-1999
Kenneth F. Walsh, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth F. Walsh v. United States Postal Service
01991589
November 8, 1999
Kenneth F. Walsh, )
Appellant, )
)
v. ) Appeal No. 01991589
) Agency No. 1B-021-0083-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission sets aside the agency's
November 24, 1998 final decision (FAD), which partially dismissed
appellant's October 27, 1998 formal EEO complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. �1614.107(b). The agency has
offered no arguments in response to appellant's December 16, 1998 timely
appeal to persuade us to the contrary.
The FAD defined appellant's issues as follows: (1) on January 9, 1998,
he was forced to work beyond his medical limitations, which caused him to
sustain a back injury; and (2) he has been denied reasonable accommodation
since his request for Light Duty was denied on April 6, 1998."<1>
The FAD declared that allegation (2) "is a matter that may be appealable
to the Merit Systems Protection Board (MSPB), while Allegation (1)
is not. For this reason, Allegation (2) concerning your denied Light
Duty has been assigned a separate and new EEO Complaint Numbered
1B-021-0014-99. [Appellant] will be advised via separate correspondence
at a later date, of the [agency's] further processing of Allegation (2)."
The FAD dismissed allegation (1) for untimely EEO Counselor contact,
pursuant to 29 C.F.R. �1614.107(b). The FAD determined that appellant's
August 5, 1998 EEO Counselor contact was beyond the applicable time
limitation of 45 days, as set forth at 29 C.F.R. �1614.105(a)(1).
The Commission finds that the agency has improperly fragmented appellant's
claim that the agency failed to provide him with reasonable accommodation.
Drake v. Department of the Air Force, EEOC Request No. 05970689 (March
29, 1999); Tilden v. Department of the Army, EEOC Appeal No. 01976352
(July 2, 1998); Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). We also find, in the present case,
that each day the agency allegedly failed to provide appellant with
reasonable accommodation was a recurring violation. Mitchell v. Department
of Commerce, EEOC Appeal No. 01934120 (March 4, 1994).
In addition, the Commission finds that appellant's dismissed allegation
may be tantamount to a constructive suspension. Cole v. U.S. Postal
Service, EEOC Petition No. 03960099 (February 10, 1997). We note, in
regard to the present case, appellant's contention on appeal that the
agency has barred him from its facility from January 30, 1998, to the
present (i.e., the date of his appeal, December 16, 1998).
Therefore, the Commission will also remand this matter for the agency
to determine whether allegation (1), as well as allegation (2), viewed
together, should be treated as a mixed case complaint or mixed case
appeal to the Merit Systems Protection Board (MSPB), pursuant to 29
C.F.R. �1614.302.
The FAD is hereby REVERSED and appellant's complaint is hereby REMANDED
for further processing in accordance 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
hereby directed to comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to ensure the completion of the following actions:
1. The agency shall refer appellant to EEO counseling for a clarification
of the allegations in his October 27, 1998 EEO complaint, for the sole
purpose of determining whether allegation (1) in appellant's complaint
should be processed as a mixed case complaint or mixed case appeal in
accordance with 29 C.F.R. �1614.302, in addition to allegation (2),
and advise appellant of his right of election accordingly.
2. Subsequent to the meeting with appellant, and his representative,
if any, and the completion of counseling, the EEO Counselor shall issue
a supplemental report of counseling to appellant and his representative,
if any. The supplemental report shall include all relevant documentation.
3. Thereafter, the agency shall issue a new final agency decision
to appellant and his representative, if any, with appeal rights to
the Commission. The new final agency decision shall state whether
it is dismissing appellant's complaint for having elected to file
an MSPB appeal, pursuant to 29 C.F.R. �1614.107(d), with regard to
both allegations (1) and (2); or whether the agency is processing his
complaint in its entirety, as a mixed case complaint, pursuant to 29
C.F.R. �1614.302; or whether appellant's complaint in its entirety will
be processed as a non-mixed case. The new final decision shall provide
the legal grounds for its determination, as well as any evidence and
documentation relied upon.
4. The agency shall ensure that all Ordered actions, including
appellant's meeting with the Counselor, the supplemental report of
counseling, and issuance of the new final agency decision, are concluded
within sixty (60) calendar days of the date the Commission's decision
becomes final. True copies of all Ordered documents, including the
report of supplemental counseling, the new final agency decision, and
any and all supporting documentation, must be submitted 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. �l6l4.604(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:
11/08/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1See �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq.