01991499
01-19-2000
Gonzella Dorsey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gonzella Dorsey, )
Complainant, )
)
)
v. ) Appeal No. 01991499
) Agency No. 4-J-460-0187-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 12, 1998,<1> complainant filed a timely appeal of a final
agency decision, which was dated November 4, 1998, dismissing her
complaint due to untimely EEO Counselor contact and/or raising the matter
with the Merit Systems Protection Board (MSPB).<2>
The record indicates that on June 25, 1998, complainant contacted an EEO
Counselor concerning her complaint. In her July 31, 1998 complaint,
complainant alleged that in February 1995, she received a notice
of removal from employment effective March 31, 1995. The record
indicates that complainant was actually removed from employment on
December 19, 1995. Complainant indicated that she previously filed a
grievance/arbitration which was denied on December 18, 1995, and that
she filed an MSPB appeal which was initially denied on October 24, 1997,
and her petition for review of that initial decision was denied on May
28, 1998. Complainant also indicated that her EEO Counselor contact was
untimely because she did not know until she met a former agency employee
that she could file an EEO complaint and a grievance concerning the
same matter at the same time. Complainant stated, however, that she
thereafter chose to file �a mixed case� with the MSPB.
In its final decision, the agency stated that complainant raised the same
matter with the MSPB, and her EEO Counselor contact with regard to her
complaint was untimely. The agency did not submit a copy of the MSPB's
initial decision and/or a copy of complainant's petition for that appeal.
The agency submitted a copy of an agency managerial official's affidavit
indicating that EEO Posters were displayed at the facility and at the
time when the alleged incident occurred, and included photographs of
the posters in the record.
On appeal, complainant, reiterating her previous arguments, contends
that the union advised her to file a grievance prior to filing an EEO
complaint and she did not know about the 45-day time limit to contact
an EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The record indicates that complainant was removed from employment on
December 19, 1995, but she did not contact an EEO Counselor until
June 25, 1998, which was beyond the 45-day time limit set by the
regulations. After a review of the record, it appears that complainant
knew about the EEO process on or before December 18, 1995, while her
grievance/arbitration was pending within the agency. Complainant
indicated that after she learned that she could file an EEO complaint
concerning her removal, she chose to file a mixed case complaint within
the MSPB, rather than contact an EEO Counselor.
Furthermore, after a review of the agency managerial official's affidavit,
including a copy of the photographs of the EEO posters, it appears that
complainant had a constructive knowledge of the time limits for initiating
EEO Counselor contact at the relevant time period. The Commission has
held 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 05910474 (September 12, 1991). Although complainant
denies the agency's posting on appeal, she proffers no evidence to
rebut the agency's argument nor does she provide any evidence as to when
she learned about the requisite time limit to contact an EEO Counselor.
Based on the foregoing, we find that complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. Accordingly, the agency's final decision
is hereby AFFIRMED.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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. 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 (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:
January 19, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all Federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Commission notes that the agency was unable to supply a copy
of a certified mail return receipt or any other material capable of
establishing the date complainant received the agency's final decision.
Accordingly, since the agency has failed to fulfill its obligation to
transmit its final decision by a method enabling the agency to show the
date of receipt, the Commission presumes that complainant's appeal was
filed within thirty (30) days of receipt of the agency's final decision.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.402).
3In view of the affirmance of the dismissal of complainant's complaint
due to untimely EEO Counselor contact, we need not address the agency's
alternative grounds for dismissal, i.e., raising the same matter in an
MSPB appeal.