Appellant )

Equal Employment Opportunity CommissionJan 20, 1999
01980999 (E.E.O.C. Jan. 20, 1999)

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