01990546
10-08-1999
Daniel C. Porter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel C. Porter, )
Appellant, )
)
v. )
) Appeal No. 01990546
William J. Henderson, ) Agency No.4-D-280-0135-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated October 8, 1998, partially
dismissing his complaint for untimely counselor contact. The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
On May 28, 1998 appellant contacted an EEO counselor regarding allegations
of discrimination based on physical disability (severe migraines).
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, appellant filed a formal complaint alleging he was
discriminated against when: (1) on February 18, 1998, his request for a
regular schedule was not granted; and (2) on May 29, 1998, his request
for a regular schedule was not granted.
The agency dismissed allegation (1) for untimely counselor contact
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b). Specifically, the
agency determined that appellant's counselor contact was more than three
months after the alleged event, and well beyond the forty-five (45)
day time limitation. The FAD indicated that the appellant failed to
provide evidence that he was unaware of the time limit for contacting a
counselor or otherwise persuade the agency to extend the time limitation.
On appeal, the appellant asserts that his contact was untimely for
several reasons: 1) the time it took to obtain medical verification,
2) his attempt to address the problem through the chain of command,
and 3) his unfamiliarity with the EEOC process and its time limits.
In response, the agency relies on a supervisor's affidavit, attesting
that an EEO poster informing employees of the forty-five (45) day time
limit is on display on the work room floor. The appellant, in return,
argues that the poster is placed too high to be read. Appellant also
included supporting photographs of the poster and its location.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. See 29 C.F.R. �1614.105(a)(2).
As a preliminary matter, appellant's argument that it took time to obtain
medical verification is not an acceptable justification for extending
the time limit. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Ball
v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Thus, the limitation period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts
that would support a charge of discrimination have become apparent.
When a complainant has some reason to support the belief that prohibited
discrimination has occurred, contact with a Counselor must occur. Waiting
until one has proof of discrimination before initiating a complaint
can result in untimely contact. See Bracken v. U.S. Postal Service,
EEOC Request No. 05900065 (March 29, 1990).
In addition, appellant's attempt to address his concerns through the
proper chain of command does not entitle him to a waiver of the time
limitation. The Commission has consistently held that utilization
of internal agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor.
See Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021 (October 5,
1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April
25, 1991).
With respect to the agency's assertion that appellant had constructive
knowledge of the time limitations, we find the affidavit relied upon
by the agency to be absent from the record. In light of the fact that
both the agency and appellant refer to this document, we are unable
to make a determination in this matter without it. Therefore, we must
remand the complaint so that the agency can supplement the record with a
copy of the affidavit regarding placement of the work room EEO poster.
Further, we find that the agency has failed to address the appellant's
argument regarding the inaccessibility of the poster and instruct it to
do so on remand.
Accordingly, the agency's dismissal of allegation (1) is VACATED.
Allegation (1) is REMANDED to the agency for further processing in
accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. Supplement the record with a copy of the affidavit referenced and
relied upon by the agency in contending appellant had constructive
knowledge of the time limitations for contacting an EEO counselor.
2. Address appellant's argument on appeal that the EEO poster was
inaccessible, including but not limited to the location of other EEO
posters or information.
3. Investigate when appellant first learned of the forty-five (45)
day time limitation for contacting an EEO counselor.
Thereafter, the agency shall either accept allegation (1) for
investigation or issue a final decision, with appeal rights to the
Commission, dismissing allegation (1). The supplemental investigation
and the acceptance of allegation (1) for investigation or issuance of the
final decision dismissing allegation (1) must be completed within sixty
(60) calendar days of the date this decision becomes final. A copy
of the final decision must be submitted 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 (M0795)
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 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 (R0993)
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. To ensure that your
civil action is considered timely, you are advised to file it 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.
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:
October 8, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations