01986747
12-21-1999
William C. Hartley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William C. Hartley v. United States Postal Service
01986747
December 21, 1999
William C. Hartley, )
Complainant, )
)
v. ) Appeal No. 01986747
) Agency No. 4C430006298
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 3, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the bases of age
(65), physical disability (lumbosacral strain/sprain), mental disability
(narcolepsy), and in reprisal for prior EEO activity when:
On or about May 27, 1993, complainant was required to accept an Office
of Workers' Compensation Programs job offer;
On June 1, 1993, complainant was informed that he could not work overtime
at the Delaware Ohio Post Office since he was working a Rehabilitation
Job Offer;
on an unspecified date in 1995, complainant was informed that he could
not bid for a March 24, 1995 vacant clerk position or a subsequent
clerk position in Delaware;
on an unspecified date in 1996, the Postmaster of Delaware, Ohio denied
complainant's doctor's request, dated October 16, 1996, for accommodation
of complainant's disability (narcolepsy);
on an unspecified date, the manager, Post Office Operations, denied
complainant's doctor's request, dated September 4, 1997, for reasonable
accommodation for complainant's disability (narcolepsy); and
On November 22, 1997, complainant received a Letter of Decision-Notice
of Proposed Removal, effective November 24, 1997.
By letter dated July 29, 1998, the agency dismissed all six of
complainant's claims pursuant to EEOC Regulations for failure to timely
contact an EEO Counselor, and in the alternative, also dismissed issue
(6) for failure to state a claim (due to wrong forum) and for "prior
election." Specifically, the agency determined that because complainant's
April 23, 1998 initial EEO Counselor contact occurred more than forty-five
days after any of the alleged discriminatory actions raised in issues
(1) through (6), they were untimely. Additionally, the agency concluded
that complainant had raised issue (6) with the Merit Systems Protection
Board, and that he had also filed a grievance on the same issue.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the present case, claims (1), (2), (3), and (6) of the complaint
identified four specific acts of alleged discrimination occurring in May
and June 1993, March 1995, and November l997. As complainant's April
23, 1998 initial EEO counselor contact occurred more than forty-five
days after these incidents of alleged discrimination, it was clearly
untimely. Moreover, complainant offered no evidence to indicate that
the time limits for these claims should be extended. Consequently,
we find that the agency properly dismissed claims (1), (2), (3), and
(6) for untimely EEO Counselor contact.<2>
With respect to claims (4) and (5), however, we find that the agency's
decision to dismiss the claims for untimely EEO Counselor contact
was improper. In claims (4) and (5) of his complaint, complainant
alleged that he was subjected to discrimination when the agency denied
his doctor's requests, dated October 16, 1996 and September 4, 1997,
for accommodation of complainant's narcolepsy. As noted above, the
agency dismissed the claims because complainant did not initiate contact
with an EEO Counselor until April 23, 1998. The record indicates
that the agency requested more information regarding the October 16,
1996 request for accommodation and never formally denied the request,
and the identified manager denies having received the September 4, 1997
request. The Commission has held, however, 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, when a specific denial has
not been communicated. See Mitchell v. Department of Commerce, EEOC
Appeal No. 01934120 (March 4, 1994). Here, beginning on October 16,
1996, the agency's alleged violation recurred each day that it failed to
provide complainant with a reasonable accommodation, continuing through
complainant's renewed request in September 1997. Therefore, complainant's
contact with an EEO Counselor on April 23, 1998, was timely.
Accordingly, the agency's decision to dismiss claims (1), (2), (3), and
(6) is AFFIRMED. The agency's decision to dismiss claims (4) and (5)
is REVERSED for the reasons set forth herein, and claims (4) and (5)
are REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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:
December 21, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2As allegation (6) was properly dismissed for failure to timely contact
an EEO Counselor, we need not address the agency's alternative grounds
for dismissal, i.e., for failure to state a claim and/or for election
of a non-EEO process.