Harry Craig , Appellant,v.William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01990614 (E.E.O.C. Oct. 5, 1999)

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