Richard J. Pupalaikis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01990460 (E.E.O.C. Nov. 4, 1999)

01990460

11-04-1999

Richard J. Pupalaikis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Richard J. Pupalaikis v. United States Postal Service

01990460

November 4, 1999

Richard J. Pupalaikis, )

Appellant, )

)

v. ) Appeal No. 01990460

) Agency No. 4-C-190-0099-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

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

September 8, 1998 final decision (FAD), which partially dismissed

appellant's May 1, 1998 formal EEO complaint for untimely EEO Counselor

contact pursuant to 29 C.F.R. �1614.107(b). The agency has offered no

arguments on appeal to persuade us to the contrary.<1>

The FAD defined appellant's issues as follows: "discrimination on the

basis of physical disability (Lower back-failure to accommodate) when:

(1) from October 17, 1997 to December 6, 1997, he was denied work; and

(2) from December 7, 1997 to January 15, 1998, he was denied work."<2>

The FAD accepted allegation (2) for investigation, and dismissed

allegation (1) for untimely EEO Counselor contact, pursuant to 29

C.F.R. �1614.107(b). The FAD determined that appellant's January 21,

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 allegations may

be tantamount to a constructive suspension in the agency's purported

denying him work from October 17, 1997, to January 15, 1998. Cole

v. U.S. Postal Service, EEOC Petition No. 03960099 (February 10,

1997). Therefore, the Commission will also remand this matter for the

agency to determine whether appellant's allegations, viewed as whole,

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 Commission finds for jurisdictional purposes, in this regard, that

appellant is a disabled veteran.

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 May 1, 1998 EEO complaint, for

the sole purpose of determining whether appellant's complaint should be

processed as a mixed case complaint or mixed case appeal in accordance

with 29 C.F.R. �1614.302, 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), 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 the new final agency decision shall

declare 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:

11/04/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1In response to appellant's appeal filed on October 18, 1998, the agency

argues, in pertinent part, that his appeal is untimely, i.e., beyond the

applicable time period of 30 days. See 29 C.F.R. �1614.402, in relevant

part. Although the agency avers that appellant received the FAD on

September 10, 1998, it has provided no evidence to support that assertion.

It appears, instead, that appellant, erroneously and inexplicably, filed

his appeal with the agency on September 15, 1998, instead of with the

Commission as properly advised to do by the FAD. Had appellant filed his

appeal with the Commission on that date, i.e., September 15, 1998, his

appeal would have been timely. We also note appellant's comments, in an

October 17, 1998 letter to the agency, that the agency took three weeks to

advise him that his appeal had been sent to the wrong place. Under these

circumstances, the Commission accepts appellant's appeal as having been

timely filed. Phillips v. U.S. Postal Service, EEOC Appeal No. 01951360

(April 2, 1996), and cases cited therein; request to reconsider denied at

EEOC Request No. 05960511 (September 26, 1996).

2See �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq.