01981182
03-14-2000
Doretha Cleckley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Doretha Cleckley v. United States Postal Service
01981182
March 14, 2000
Doretha Cleckley, )
Complainant, )
)
v. ) Appeal No. 01981182
) Agency No. 1K-221-0147-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Upon review, we find that the agency improperly dismissed complainant's
complaint for failure to state a claim.<1> See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1). In her complaint, complainant alleged that she was
discriminated against when she was denied a reasonable accommodation.
Specifically, complainant alleged that on June 26, 1997, she was told
that she would be reassigned on July 5, 1997, from her limited/light
duty position in the South Dock operation to the manual letter operation
(044) area, which according to complainant was a high stress work area.
Complainant indicated that her assignment to the South Dock operation was
pursuant to the terms of a prior settlement as a reasonable accommodation
for her physical disabilities.
In its final decision, the agency defined the subject complainant as
involving a failure to accommodate complainant's disability when from
June 16, 1997 through June 26, 1997, complainant was put in a job which
aggravated her condition. According to the agency, complainant was never
physically put in the job, which she states aggravates her condition
and, therefore, the agency found that complainant was not aggrieved.
The agency noted that from the date of the identified incident to the
present, complainant has not worked in any position.
Initially, we note that the agency misdefined complainant's claim in
its final decision. Complainant was not challenging the assignment she
had in the South Dock operation, but rather her impending reassignment
to the 044 operation. Complainant is alleging that the agency failed
to accommodate her disability. Clearly, the subject complaint states
a processable claim. Accordingly, the agency's decision is REVERSED,
and the complaint is REMANDED to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to redefine the claim of complainant's complaint
as whether she was denied reasonable accommodation commencing on June 26,
1997. Thereafter, the agency is ORDERED to process the redefined/remanded
complaint 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
complaint, indicating the specific claim therein as redefined above,
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 (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 14, 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.