James A. Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01983218 (E.E.O.C. May. 26, 2000)

01983218

05-26-2000

James A. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


James A. Smith, )

Complainant, )

)

v. ) Appeal No. 01983218

) Agency No. 4-H-300-0217-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

________________________________)

DECISION

Complainant filed the instant appeal from the agency's February 11, 1998

decision dismissing complainant's complaint for failure to timely contact

an EEO Counselor.<1> The agency defined the complaint as alleging that

complainant was discriminated against on June 9, 1997 when he was forced

to resign and when he was denied leave. The agency found, and the EEO

Counselor's report shows, that complainant initially contacted an EEO

Counselor on August 11, 1997.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1)) provides that

an aggrieved person must contact an EEO Counselor within 45 days of the

matter alleged to be discriminatory. The 45 day time limit shall be

extended when an individual shows that he was not notified of the time

limits and was not otherwise aware of them or that he did not know and

reasonably should not have known that the discriminatory matter occurred.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(2)).

On appeal complainant argues that he was unaware of the time deadline for

contacting an EEO Counselor. Constructive knowledge of the time limit

may be imputed to individuals. Thompson v. Department of the Army, EEOC

Request No. 05910474 (Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of

America, 861 F.2d 746 (1st Cir. 1988)). In the instant matter the agency

has failed to produce any evidence showing that complainant had actual

or constructive notice of the time limit for contacting an EEO Counselor.

For instance, the agency has not supplied a copy of any EEO poster(s) or

an affidavit describing the location of the poster(s) during the relevant

time period. Therefore, we can not find that complainant had actual or

constructive notice of the time limit for contacting an EEO Counselor.

The Commission shall remand the complaint to the agency so that the agency

may supplement the record with evidence showing whether complainant had

actual or constructive notice of the time limit for contacting an EEO

Counselor more than 45 days before he contacted an EEO Counselor.

The agency's decision dismissing the complaint is VACATED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER

The agency shall investigate the issue of whether complainant had

actual or constructive knowledge of the time limit for contacting an

EEO Counselor more than 45 days before he contacted an EEO Counselor.

The agency shall supplement the record with copies of the EEO posters

(or affidavits describing the posters if the posters are unavailable) and

any other evidence showing that complainant was informed, or should have

known, of the time limits for contacting an EEO Counselor. The agency

shall redetermine whether complainant timely contacted an EEO Counselor.

Within 60 days of the date this decision becomes final the agency

shall either issue a letter to complaint accepting the complaint for

investigation or issue a new decision dismissing the complaint. A copy

of the letter accepting the complaint or new decision dismissing the

complaint must be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

May 26, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

1On 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.