EEOC DOC 01A01488 (E.E.O.C.), 2002 WL 231329
E.E.O.C.
*1 Office of Federal Operations
GERALDINE BRATTON, COMPLAINANT,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.
Appeal No. 01A01488
Agency No. 1-D-231-0056-99
Hearing No. 120-A0-3748X
February 7, 2002
DECISION
Complainant filed a timely appeal with this Commission from the agency’s decision dated October 26, 1999, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405.
On December 18, 1998, complainant contacted the EEO office regarding claims of discrimination based on race, sex, and disability. Specifically, complainant claimed that because of her disability, she was denied the right to work light duty. Complainant alleged also that the agency had denied her the right to a reasonable accommodation on a continuing basis from August 14, 1997 through November 3, 1998. Informal efforts to resolve complainant’s concerns were unsuccessful. Subsequently, on July 29, 1999, complainant filed a formal complaint. The agency issued a decision dated October 26, 1999, wherein it determined that complainant’s complaint was comprised of the following two claims:
- Complainant alleged discrimination based on race, sex and disability when from November 3, 1998 to November 13, 1998, she was denied the opportunity to work light duty; and
- Complainant alleged that from August 14, 1997 to November 2, 1998, she was denied the opportunity to work light duty.
The agency’s October 26, 1999 decision partially accepted a portion of complainant’s complaint for investigation and dismissed the remaining portion with appeal rights to the Commission. The FAD accepted claim 1 for investigation, but dismissed claim 2, which is the subject of the instant appeal, on the grounds of untimely EEO Counselor contact.
In an Order of Dismissal issued by an EEOC Administrative Judge (AJ) on September 13, 2001, the AJ stated that claim 1 had been withdrawn by complainant. As a consequence, claim 2, here on appeal, is the only viable issue in the instant matter.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should 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 45 days of the effective date of the action.
EEOC Regulations further 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, he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
*2 A review of the record indicates that complainant is alleging that the agency failed to provide a reasonable accommodation for her disability when it denied her the opportunity to work light duty on a continuous basis. Complainant alleged that the agency continuously denied her requests to work light duty beginning in August 1997 and continuing to November 1998, including the 45 days before her EEO contact.
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 fails to provide the accommodation. See Harman v. Office of Personnel Management, EEOC Request No. 05980365 (November 4, 1999); Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994). However, in the instant case, the record discloses that complainant was advised on several occasions since August 1997, and more than forty-five days before her initial EEO Counselor contact, that her requests for reasonable accommodation in the form of light duty had been denied. This situation is distinguished from that situation in which a complainant requests a reasonable accommodation and the agency fails to respond to the request or fails to provide an accommodation. See Mitchell, supra (reasonable accommodation claim timely under recurring violation theory where complainant requested an accommodation and the agency failed to respond and continually failed to provide an accommodation.) Here, because complainant had been expressly advised of the agency’s denial of her light duty requests, we find that her EEO contact was untimely.
For the reasons stated herein, the Commission finds that the agency’s decision dismissing claim 2 of the instant complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS – ON APPEAL RECONSIDERATION (M0701)
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:
- The appellate decision involved a clearly erroneous interpretation of material fact or law; or
- 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 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 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.
*3 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 (S0900)
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. 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:
Carlton M. Hadden
Director
Office of Federal Operations
EEOC DOC 01A01488 (E.E.O.C.), 2002 WL 231329
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