01985924
03-29-2000
Yvonne McGinnis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yvonne McGinnis v. United States Postal Service
01985924
March 29, 2000
Yvonne McGinnis, )
Complainant, )
)
v. ) Appeal No. 01985924
William J. Henderson, ) Agency No. 1F-924-0008-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 27, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on July 3, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. <1> In her complaint, complainant alleged that
she was subjected to discrimination on the basis of physical disability
(repetitive trauma syndrome) when:
Complainant was terminated from the agency on May 16, 1997;
Complainant received a letter on September 20, 1997, that did not
answer her request for reasonable accommodation; and
Complainant submitted a request for sick leave with a medical update
and was not granted this leave on October 12, 1997.
The agency dismissed issue (1) pursuant to EEOC Regulation 29 C.F.R. �
1614.105(a), for untimely EEO Counselor contact. Specifically, the agency
claimed that complainant was terminated on May 16, 1997, and therefore,
her counselor contact on October 22, 1997, was beyond the applicable
forty-five (45) day limitation period. The agency dismissed issues (2)
and (3) pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)), on the
grounds of mootness. Regarding complainant's request for sick leave
and reasonable accommodation, the agency claimed that complainant's
termination from employment nearly four months before these requests
were made rendered these issues moot.
On appeal, complainant claims that she was not terminated from the
agency and further states that the agency failed to prove that she was
terminated. Complainant claims that she did not receive notice of the
alleged termination until after she requested a reasonable accommodation
from her employer. Complainant states that she first become aware of
the alleged termination when she received a letter from her Congressman
on October 1, 1997, which detailed complainant's employment status and
contained a notice of separation dated April 9, 1997, which allegedly had
been sent to complainant on April 9, 1997. Therefore, complainant claims
that her initial EEO Counselor contact on October 22, 1997, was timely
since it occurred within forty-five (45) days of October 1, 1997, the
date complainant learned of the agency's alleged discriminatory action.
The record reveals that complainant had not been working since March 1993,
and had filed numerous claims for compensation, relative to conditions
she alleged were caused by work related conditions. The record also
shows that complainant contacted her Congressman's office on August 20,
1997, while she was in Leave Without Pay Status. By letter dated August
22, 1997, the Congressman's office contacted the agency and requested
a response regarding complainant's employment status. By letter dated
September 12, 1997, the agency provided a detailed update of complainant's
status to the Congressman and included a copy of an April 9, 1997 letter
indicating that complainant was separated from the agency on May 16, 1997.
By letter dated September 17, 1997, the Congressman's office forwarded
complainant the agency's response. The record contains a copy of the
September 12, 1997 letter, as well as the April 9, 1997 letter allegedly
sent to complainant, however, there is no return receipt certifying
complainant received the April termination notice. Complainant also
submitted for the record a PS Form 50 entitled Notification of Personnel
Action which identifies a separation date of May 16, 1997, however,
the processing date on this form is December 29, 1998.
In the present case, the agency states that complainant was separated
on May 16, 1997, and claims that complainant was provided notice of the
separation in April 1997. Since the record contains no evidence that
complainant was aware of the alleged separation prior to the Congressman's
September 17, 1997 letter, we find that the agency failed to substantiate
the bases for its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991).
With regard to issues (2) and (3), we find that these issues were
improperly dismissed as moot. We note that should complainant succeed in
proving that the May 16, 1997 termination was discriminatory, a possible
remedy could be the restoration of sick leave and the granting of her
request for a reasonable accommodation. Therefore, as the propriety
of complainant's termination is still at issue, so is the denial of her
requests for reasonable accommodation and sick leave.
Accordingly, the agency's decision to dismiss complainant's complaint
for untimely counselor contact and mootness was improper and is REVERSED
and the complaint is REMANDED for further processing in accordance with
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 (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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 (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
March 29, 2000
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.