01974330
01-28-1999
Theresa Chen, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Theresa Chen v. United States Postal Service
01974330
January 28, 1999
Theresa Chen, )
Appellant, )
)
v. ) Appeal No. 01974330
) Agency No. 1F-927-1050-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated April 18, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.504(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The parties entered into a settlement agreement on June 29, 1995 in
which the appellant agreed to withdraw her request for EEO counseling.
Therein the agency stipulated that the letter of warning would be
rescinded, the appellant's medical restrictions would be accommodated,
and an apology was offered.
By letter of March 19, 1997, the appellant alleged that since August
1995, the agency had continued to deny her reasonable accommodations
for her medical restrictions as required by the settlement agreement.
In its final decision, the agency found that the agency had accommodated
the appellant for one month until such time as she was cleared to return
to full duties without restrictions by the physician of record in her
workers' compensation case. The agency represented that at that point
the appellant chose to see her personal physician and not the physician
of record in her workers' compensation case. The decision represented
that the appellant started to work four hours a day, stopped working,
and remained in a leave without pay status since July 1995. The decision
also represented that on June 23, 1995, the appellant declined a limited
duty job which complied with her medical restrictions.
EEOC Regulation 29 C.F.R. �1614.504(c) requires agencies to process
allegations that subsequent acts of discrimination violate a settlement
agreement as separate complaints under �1614.106 or �1614.204, as
appropriate, rather than as breach of settlement agreement allegations
under 29 C.F.R. �1614.504.
The Commission observes that the settlement agreement did not require
the agency to provide the appellant with a specific accommodation
for specific medical restrictions. Instead, the settlement agreement
stated generally that the appellant's medical restrictions would be
accommodated without limitation as to the duration of the obligation or
the effect of changing medical restrictions. The Commission finds that
such a general provision is not specifically enforceable. Accordingly,
the Commission concludes that, given the facts of this case, the agency
should have treated the appellant's March 19, 1997 letter as if it were
raising a new denial of reasonable accommodation claim.
A memorandum in the record represents that the appellant filed an
EEO complaint, agency number 1F-927-1085-95, wherein she alleged that
the agency discriminated against her based on her race, sex, national
origin, disability, and prior EEO activity when, on August 7, 1995,
the agency instructed her to report to tour 1 and regular and full duty.
The memorandum asserts that the complaint raises the same issue as the
March 19, 1997 letter. However, the record does not contain a copy
of agency number 1F-927-1085-95. It also appears that the appellant
is contesting a denial of reasonable accommodation that allegedly was
continuing on March 19, 1997.
CONCLUSION
For the above-stated reasons, the Commission VACATES the final decision
of April 18, 1997, and REMANDS the appellant's March 19, 1997 allegation
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with Subpart A of 29 C.F.R. Part 1614. Within thirty (30) calendar days
of the date this decision becomes final, the agency shall notify the
appellant in writing that the agency has assigned an EEO counselor to
counsel the appellant regarding her reasonable accommodation allegation.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall issue to the appellant a notice of her right to file a
formal discrimination complaint unless the appellant agrees in writing to
extend the counseling period for no more than sixty (60) calendar days.
Alternatively, the appellant may agree to a ninety (90)-calendar-day
counseling period if the agency has an established dispute resolution
procedure.
The agency is ORDERED to send to the Compliance Officer as referenced
below, a copy of the agency's notice to the appellant of the assignment
of an EEO counselor, a copy of the agency's notice to the appellant of
her right to file a formal complaint, and a copy of any written agreement
signed by the appellant that extends the time period for EEO counseling.
Alternatively, if the appellant already has filed an EEO complaint
alleging failure to provide reasonable accommodation continuing to March
19, 1997, the agency should issue a new final agency decision.
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
Office of Federal Operations