01981505
04-28-1999
Lawrence J. Alphonso, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lawrence J. Alphonso v. United States Postal Service
01981505
April 28, 1999
Lawrence J. Alphonso, )
Appellant, )
)
v. ) Appeal No. 01981505
) Agency No. 4B-120-0093-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The final agency decision was received by appellant on November
24, 1997. The appeal was postmarked December 9, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to timely initiate contact with an
Equal Employment Opportunity (EEO) Counselor.
BACKGROUND
Appellant contacted an EEO counselor on September 12, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when (1) from September 18, 1991 through January
21, 1997, the agency failed to offer appellant a disability accommodation;
and (2) he was required to work beyond his medical limitations as outlined
in his Limited Duty Assignment dated January 22, 1997. Informal efforts
to resolve appellant's concerns were unsuccessful. Accordingly, on
October 14, 1997, appellant filed a formal complaint alleging that he
was the victim of unlawful employment discrimination on the basis of
physical disability (plantar fascitis and subtalar joint disease).
On November 18, 1997, the agency issued a final decision accepting for
investigation allegation (2) of appellant's complaint but dismissing
allegation (1) on the grounds that he failed to timely initiate
contact with an EEO Counselor. Specifically, the agency determined
that appellant's September 12, 1997 EEO contact concerning alleged
discrimination beginning September 18, 1991 was well beyond the forty-five
(45) day time limitation prescribed by EEOC Regulations. The agency
indicated further that EEO posters containing applicable time limits
were posted at appellant's work site. The record contains a copy of
one such EEO poster.
On appeal, appellant asserts that allegations (1) and (2) of his
complaint amount to one continuous denial of an accommodation by the
agency beginning September 18, 1991. As such, appellant contends, the
agency erred in dismissing allegation (1) of appellant's complaint while
accepting for investigation allegation (2).
In its brief on appeal the agency asserts that the two allegations are
distinct. The agency contends that allegation (1) concerns the alleged
denial of an accommodation from September 1991 through January 1997.
In contrast, the agency argues, allegation (2) concerns the agency's
alleged violation beginning January 22, 1997, of appellant's status as a
limited duty employee. The agency accepted allegation (2) as an alleged
recurring violation from January 22, 1997 through to the present.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO 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. Although careful
compliance with the time limits generally is required of parties alleging
discrimination, Commission regulations further provide that the forty-five
(45) day period may be extended where the individual shows that he or she
was not notified of the time limit and was not otherwise aware of it, that
he or she did not know and reasonably should not have been aware that the
alleged discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his
or her control from contacting an EEO Counselor within the time limit,
or for other reasons deemed sufficient by the agency or the Commission.
Id. �1614.105(a)(2).
In allegation (1) of appellant's complaint he alleges that he was
subjected to discrimination by the agency's failure beginning September
19, 1991, to accommodate his disability by placing him on light duty.
The agency determined that appellant knew or should have known before
his September 12, 1997 EEO contact that the agency was allegedly failing
to accommodate his disability. Therefore, the agency determined that
appellant's EEO contact with respect to allegation (1) was untimely.
The Commission disagrees with the agency's position. The record contains
a letter dated September 18, 1991 from appellant's physician regarding
the agency's apparent denial of accommodation for appellant's job related
injury. Therein, appellant's physician clearly states that appellant's
injury "is definitely aggravated from the prolonged standing."
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 appellant with
a reasonable accommodation. See Mitchell v. Department of Commerce, EEOC
Appeal No. 01934120 (March 4, 1994). Here, the agency's alleged violation
recurred each day that it failed to provide appellant with a reasonable
accommodation, i.e., from September 18, 1991 through to the present.
Therefore, appellant's contact with an EEO Counselor on September 12,
1997 was timely. The Commission determines also, that allegation (1)
is inextricably intertwined with allegation (2) which the agency accepted
for investigation.
CONCLUSION
Accordingly, we REVERSE the agency's dismissal of allegation (1) for
untimely EEO Counselor contact. Allegation (1) is hereby REMANDED for
further processing in accordance with this decision and the applicable
regulations.
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 the 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 the 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 acknowledgment 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 (MO795)
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:
April 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations