juvenile diabetes discrimination and request for reasonable accommodation
ORDER
The agency is ordered to process the remanded claim that complainant
was subjected to discrimination based on disability (juvenile diabetes
mellitus, renal insufficiency, hypertension, sleep apnea, hyperlipidemia,
acid reflux, and torn rotator cuff) when on or about April 6, 2006, he
was told the agency could not accommodate his request for reasonable
accommodation, resulting in his ongoing constructive suspension, in
accordance with 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.
Ricardo J. Rivera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071230
Agency No. 4H-300-0270-06
DECISION
Complainant filed a timely appeal with this Commission from the
agency’s decision dated December 1, 2006, dismissing his complaint
of unlawful employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. Complainant claimed that he was subjected
to discrimination based on his disabilities (juvenile diabetes mellitus,
renal insufficiency, hypertension, sleep apnea, hyperlipidemia, acid
reflux, and torn rotator cuff) when by letter dated May 1, 2006, he
was denied reasonable accommodation by being informed he could not be
provided work to accommodate his medical restrictions, resulting in his
ongoing constructive suspension.1
At the time of his complaint, complainant was a Supervisor, Computer
Mail Forward. Due to medical problems, at some point he stopped working.
By letter dated November 17, 2005, complainant requested long term
reasonable accommodation. The request was accompanied by a letter from
his health care provider requesting accommodations on work schedule and
location, and so forth.
After complainant met with the agency’s District Reasonable Accommodation
Committee (DRAC), by letter dated March 23, 2006, the agency offered him a
temporary assignment at a new location of performing duties of an address
management specialist. However, soon after, the offer was verbally
rescinded on the grounds that it was not a bona fide job and the work unit
did not have the allocated hours in their budget. By letter dated April
20, 2006, DRAC informed complainant that his reasonable accommodation
request did not fall within the parameters of reasonable accommodation
and could not be met. By letter to complainant dated May 1, 2006, an
agency lead personnel services specialist recounted the above offer of
a temporary assignment and withdrawal, and advised that DRAC finalized
that the agency was unable to accommodate him within his restrictions.
By appeal to the Merit Systems Protection Board (MSPB) dated April
20, 2006, complainant recounted that the above temporary offer was
withdrawn on or about April 6, 2006, on the grounds that he could not
be reasonably accommodated, resulting in his constructive suspension
because his disabilities were not reasonably accommodated with work
within his medical restrictions.
In an initial decision dated August 22, 2006, the MSPB denied the appeal
for lack of jurisdiction. It reasoned that complainant did not show that
as a supervisory or management employee he was entitled to light duty
under agency policy, regulation or contractual provision, and his claim of
disability discrimination could not confer jurisdiction where it did not
otherwise exist. It concluded complainant’s claim of enforced leave was
without merit, and that the MSPB lacked jurisdiction over his claim.
Thereafter, on August 28, 2006, complainant initiated contact with an
EEO counselor alleging discrimination based on his disabilities when
he was informed by letter dated May 1, 2006, that the agency could not
provide work to accommodate his medical restrictions, and then filed an
EEO complaint on this matter.
The FAD dismissed the complaint on the grounds that complainant failed to
initiate contact with an EEO counselor within the 45 calendar day time
limit to do so. The record reflects that complainant’s appeal to the
MSPB and his complaint concern the same matter, i.e., failure to provide
reasonable accommodation resulting in a constructive suspension.
The Commission has held that where an individual files an appeal with the
MSPB which is dismissed for lack of jurisdiction, the matter will not be
viewed as a “mixed case.” Rather, it will be treated as a “non-mixed”
matter and processed accordingly under EEO regulations. See Schmitt
v. Department of Transportation, EEOC Appeal No. 01902126 (July 9, 1990)
(sets forth the policy of the Commission assuming jurisdiction over cases
dismissed by the MSPB for lack of jurisdiction); Phillips v. Department
of Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. §
1614.302(b). The MSPB dismissed the appeal for lack of jurisdiction.
Accordingly, complainant’s claim therein is remanded for processing
under 29 C.F.R. Part 1614 in accordance with the order below.
ORDER
The agency is ordered to process the remanded claim that complainant
was subjected to discrimination based on disability (juvenile diabetes
mellitus, renal insufficiency, hypertension, sleep apnea, hyperlipidemia,
acid reflux, and torn rotator cuff) when on or about April 6, 2006, he
was told the agency could not accommodate his request for reasonable
accommodation, resulting in his ongoing constructive suspension, in
accordance with 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 a
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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:
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 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.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2007
__________________
Date
1 The language in the FAD worded the claim somewhat differently.
A review of the complaint, counselor’s report, and other documents shows
the definition herein better captures the claim.
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2
0120071230
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071230
