01990614
10-05-1999
Harry Craig , Appellant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Harry Craig , )
Appellant, )
)
v. )
) Appeal No. 01990614
William S. Cohen, ) Agency No. CA-97-022
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On October 19, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated October 2, 1998, dismissing
his complaint for untimely counselor contact. The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
Appellant contacted the EEO office on July 3, 1997, regarding allegations
of discrimination based on age. Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on July 28, 1997, appellant
filed a formal complaint alleging he was discriminated against when he
was improperly terminated from the position of Crane Operator Supervisor
on November 21, 1996.
On August 6, 1997 the agency issued a FAD dismissing appellant's complaint
for untimely counselor contact. Thereafter, appellant filed an appeal
with the Commission. The Commission declined to impute constructive
knowledge upon appellant based on the agency's generalized affirmation
that EEO information was posted. The agency was ordered to �conduct
a supplemental investigation to ascertain whether appellant had been
informed of the necessity for initiating contact with an EEO counselor
and the time limits for doing so.� See Craig v. Department of Defense,
EEOC Appeal No. 01976598 (August 19, 1998).
In response, a supplemental investigation was conducted and the agency
issued a new FAD, dated October 2, 1998, again dismissing the complaint
for untimely counselor contact. The FAD stated that appellant's
July 3, 1997 contact occurred 7 months and 13 days after the alleged
discriminatory event. According to the agency, the supplemental
investigation indicated that posters were up in each DSCC workplace
during appellant's employment. A copy of the EEO poster was included
in the record, which describes the forty-five (45) day time limitation.
The investigation also revealed that appellant attended a two hour program
on sexual harassment, which included a section on the complaint process
and the need to timely file. The FAD further cited an employee magazine
article from January 1993 that described �1614 provisions.
On appeal, appellant contends that the EEO posters were not located
in his duty section. As for posters in other buildings, appellant
argues that he simply went inside to accomplish his tasks and then left.
He also admits attending the training program, but argues that it only
covered sexual harassment awareness.
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 Regulation 29 C.F.R. s1614.105(a) (2) provides that the agency or the
Commission shall extend the 45 day time limit when the complainant shows
he or she was not notified of the time limits and was not otherwise aware
of them. It is the Commission's policy that constructive knowledge of the
rights and obligations under Title VII will be imputed to a complainant
where the agency has fulfilled its statutory duty of conspicuously
posting EEO posters informing employees of their rights. See Piccone
v. U.S. Postal Service, EEOC Request No. 05950678 (April 11, 1996) citing
Brown v. Department of Commerce, EEOC Request No. 05890978 (January
10, 1990). However, the agency has the burden of producing sufficient
evidence to support its contention that it fulfilled its statutory duty
of conspicuously posting EEO information or that it otherwise notified
the complainant of his or her rights. In addition, the Commission has
found that constructive knowledge will not be imputed to a complainant
without specific evidence that the posters contained notice of the time
limitation for contacting an EEO Counselor. See Piccone citing Pride
v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993).
We find that the agency has provided sufficient evidence to support the
contention that appellant had constructive knowledge of the time limits
for contacting an EEO counselor. The agency has provided a copy of the
EEO poster on display at appellant's workplace. The poster's contents
include the names, pictures, and phone numbers of the EEO Counselors
and the EEO Staff, as well as information about the forty-five (45) day
time limitation for contacting an EEO Counselor. Therefore, the agency
properly dismissed the complaint pursuant to 29 C.F.R. �1614.107(b).
Accordingly, the agency's decision dismissing appellant's complaint
is AFFIRMED.
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 (S0993)
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 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations