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Box 66738 Washington DC 20035-6738 November 12, 1996 XXX XXX XXX Re: DJ Number XX Dear Mr. XX : This letter constitutes our Letter of Findings with respect to the complaint that you filed with the Civil Rights Division, U.S. Department of Justice, alleging violations of title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12131-61. You allege that you were terminated from your position with the Department of Public Works, City of Indianapolis, Indiana (the "City") because of your disability, age, and gender. This letter addresses the disability discrimination claim only. Your age and gender claims were before the Equal Employment Opportunity Commission. A. Timeliness of the Complaint As a preliminary matter, discrimination complaints under title II must be filed with the Department of Justice within 180 days of the alleged discriminatory act. Your complaint was filed with this Office (as well as the Equal Employment Opportunity Commission) more than 180 days after the date of alleged discrimination. Specifically, you were terminated from your position on XX and you filed a charge with the Equal Employment Opportunity Commission on October 7, 1992. The Equal Employment Opportunity Commission subsequently referred your charge to this Office on October 20, 1992. The regulations governing this proceeding provide that the time for filing a complaint may be "extended for good cause shown." 28 C.F.R. S 35.170(b). In this instance, you represent that you contacted the Equal Employment Opportunity Commission and were informed that you could file your complaint with it within 300 days from the alleged discriminatory act. You subsequently did so. In addition, you were terminated less than three months after January 26, 1992, the date the ADA's requirements for state and local governments became effective and the date the Department of Justice was authorized to begin 01-00469 accepting complaints. The Equal Employment Opportunity Commission, on the other hand, had no jurisdiction to accept charges of discrimination under the ADA until July 26, 1992.
We believe that good cause exists here to extend the filing date of your charge. See Bishop v. Jelleff Associates, 398 F. Supp. 579, 593 (D.C. 1974) (filing requirement tolled because of "the relative newness of the Act ..., the plaintiffs' overall lack of sophistication, the defendants' failure to post any notice on the Act and the plaintiffs' oral representations to members of the Labor Department"). We note that tolling in these circumstances does not prejudice the City. B. Background The investigation file includes the City's written explanation for your termination, copies of written reprimands, your personnel file, and statements provided by you in support of the complaint. The City represents that the laboratory that employed you is now privatized, and is no longer under the authority of the City. You began employment on XX as a XX in the Department of Public Works, City of Indianapolis. A short time later, in XX you injured XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX You received your first written reprimand on XX because of "failure to performance duties or fulfill job requirements in a satisfactory manner." The City states that you failed to report substandard, "out-of-control" quality control test data. You had earlier been given a written warning concerning the necessity of reporting such a problem. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX In XX you received a written reprimand because you did not seek assistance in XX XX You also received a written warning for leaving the work area without proper authorization after XX You returned to work on or about XX Approximately one week later, you received another reprimand. The City alleges that you left your work area on XX without XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 01-00470 -2XXXXXXXXXXXXXX. The next day, you received a three day suspension without pay for violating a workplace safety regulation.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX The City alleges that you failed to notify your supervisor that you would arrive late to work. You therefore received a written reprimand. On or about XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXX On or about XXXX The City alleges that you did not report to work and did not notify your supervisor. You received a third written reprimand and were suspended for one day without pay. You also received a fourth written reprimand for "unauthorized absences," and were suspended for one additional day without pay. When you returned to work on XXX following your suspensions, you were terminated. You believe that you were fired "because of my temporary disability and my having filed a Workman's Comp claim." You allege that co-workers were not disciplined for violating workplace rules. The City states that you were terminated because of your accumulation of disciplinary actions over a period of time from XX to XX . City policy provides that an employee who accumulates five written reprimands or three suspensions without a consecutive twelve month period free of discipline will be subject to immediate demotion or termination. The city notes that when you were released to return to work with restrictions because of your XX , accommodations were made in line with the restrictions. Further, the City has a clear written procedure for accommodating employees with disabilities, and asserts that it successfully accommodates many disabled employees. C. The Merits You must be a person with a "disability" to bring a successful claim under the ADA. A disability is defined in part as a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. S 12102(2)(A). To determine whether an individual is substantially limited in his or her ability to perform a major life activity, we look to the nature and severity of the injury, the duration of the impairment, and the permanent and long term impact of the injury. See 29 C.F.R. S 1630.2 (j) (2). The physical impairment in this case is your XXX . Your ability to XXX is affected by the injury, and the injury is severe and permanent.
-301-00471 For purposes of this analysis, we assume that you are a person
with a disability protected by the ADA. However, we are unable to substantiate your claim that you were discriminated against because of your disability. You admit that you (1) were late to work or missed work as detailed in the written reprimands (2) failed to contact your supervisors, and (3) XXX . The written rules governing your employment made clear that the cumulative result of such reprimands subjected one to removal proceedings. That is exactly what happened in this instance. Because we are unable to establish that your employer's actions were based on your disability, the allegations that you make with respect to violations of workplace rules by your coworkers are not relevant to this case. As a result of our determination, we have closed our investigation of this complaint. The Department of Justice will take no further action in this matter. If you are dissatisfied with our determination, you may be able to file a private complaint in the appropriate United States District Court under title II of the ADA. We regret that we cannot be of further assistance in this matter and thank you for your cooperation during this investigation. Sincerely,
Naomi Milton Attorney Disability Rights Section Civil Rights Division cc: Candace S. Walker Assistant Corporation Counsel -401-00472
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