01980999
01-20-1999
Appellant )
Vivian McWilliams v. United States Postal Service
01980999
January 20, 1999
Vivian McWilliams, )
Appellant )
) Appeal No. 01980999
v. ) Agency No. 1-A-111-0092-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment
Opportunity Commission (Commission) from a final agency decision of
the agency concerning her complaint of discrimination in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint in accordance with 29 C.F.R. � 1614.107(b) for untimely contact
with an EEO Counselor.
BACKGROUND
Appellant initiated contact with an EEO Counselor on August 4, 1997 and
thereafter filed a formal complaint on September 8, 1997 in which she
alleged discrimination based on disability (bilateral carpal tunnel
syndrome) when on June 3, 1997, management would not accept medical
documentation providing for light duty and would not permit her to work.
Appellant filed an appeal with this Commission from a final agency
decision of the agency dismissing her complaint for untimely EEO Counselor
Contact pursuant to 29 C.F.R. � 1614.105(a)(1). EEO Counselor contact was
initiated 17 days after the time limit. In documentation accompanying
the complaint appellant requested that the time limit be waived because
she was unaware of the deadline and she was in the process of receiving
notes from her doctors which would document her ability to work. Only
after repeated denials of her ability to work from management did she
initiate contact with the EEO office and file a complaint. In the final
agency decision the agency stated that there was no request or evidence
accompanying the complaint to extend the 45-day limit. The agency then
filed a brief concerning appellant's appeal in which it alleged that
appellant violated 29 C.F.R. � 1614.403(b) by failing to provide the
agency a copy of her appeal and/or brief to the Commission. The agency
requested that the Commission ignore any appeal or brief submitted by
appellant in support of her appeal due to this alleged violation.
ANALYSIS AND FINDINGS
EEOC regulation 29 C.F.R. � 1614.105(a) requires that an aggrieved person
initiate contact with a counselor within 45 days of the date of the matter
alleged to be discriminatory. EEOC regulation 29 C.F.R. � 1614.105(a)(2)
permits the time period to be extended when the individual shows that she
was not notified of the time limits and was not otherwise aware of them,
that despite due diligence she was prevented by circumstances beyond
her control from contacting the counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
The agency dismissed appellant's complaint for failure to contact an
EEO Counselor in a timely manner. It is the Commission's policy that
constructive knowledge will be imputed to an employee when an employer
has fulfilled its obligation of informing employees of their rights
and obligations under Title VII. Thompson v. Department of the Army,
EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined
Insurance Co. of America, 861 F.2d 746 (1st Cir. 1988).
We note that appellant claimed on appeal and in the initial complaint
that she was not aware of the limitation period for contacting an
EEO Counselor. The agency was incorrect in its final agency decision
when it stated that her complaint was not accompanied by any request
or evidence that the 45-day limit should be extended. The agency did
not present any evidence that EEO posters were on display, nor has the
agency otherwise refuted appellant's contention that she lacked knowledge
of the applicable limitation period for contacting an EEO Counselor.
Accordingly, the agency's decision to dismiss the complaint was
improper.
CONCLUSION
The agency's decision to dismiss appellant's complaint is VACATED, and
the complaint is hereby REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of the law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (RO993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
JAN 20, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations