Kenneth O. Womack, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 7, 1999
01990298 (E.E.O.C. Oct. 7, 1999)

01990298

10-07-1999

Kenneth O. Womack, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kenneth O. Womack, Jr., )

Appellant, )

)

v. )

) Appeal No. 01990298

William J. Henderson, ) Agency No.4-C-190-0080-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On October 9, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated September 23, 1998, dismissing

his complaint for untimely counselor contact. Accordingly, the Commission

accepts the appeal in accordance with EEOC Order No. 960, as amended.

On January 5, 1998 appellant contacted the EEO office regarding

allegations of discrimination based on mental disability (right anterior

lobectomy). Informal efforts to resolve appellant's concerns were

unsuccessful. Accordingly, on May 5, 1998, appellant filed a formal

complaint alleging he was discriminated against when: on October 14,

1997 he became aware that he was not hired for the position of custodian.

The agency dismissed appellant's complaint for untimely counselor contact,

pursuant to 29 C.F.R. �1614.107(b). The FAD stated that appellant's

January 5, 1998 counselor contact was eighty-three (83) days after the

alleged discriminatory event, and therefore beyond the forty-five (45)

day time limitation.

On appeal, appellant, through his attorney, contends that appellant

was not informed by the Human Resources office of the time limit for

contacting an EEO counselor. Appellant contacted the Human Resources

office, after they sent him a letter stating that he would not be

considered for a custodian position, to request that they reconsider

the matter. Appellant's attorney argues that appellant then waited for

a promised letter that never arrived.

In response, the agency contends that appellant was aware of EEO

procedures and the forty-five (45) day time limitation for contacting

a counselor. The agency noted that although appellant never filed a

formal complaint, he requested counseling on September 21, 1994 and was

given a Right to File Individual Complaint form. Further, the agency

submits an affidavit from the Manager of Distribution Operations.

She attests to the location and content of several EEO posters during

the relevant time frame.

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.

In order to commence the running of the forty-five (45) day limitations

period for requesting EEO counseling, the complainant must have either

actual or constructive knowledge of the time limit. See York v. Dept. of

Veterans Affairs, EEOC Request No. 05940575 (Nov. 2, 1994). It is

the Commission's policy that constructive knowledge will be imputed

to an employee when an employer has fulfilled its obligations under

EEOC Regulations for publicizing the time limits for contacting an

EEO Counselor. See Starr v. Dept. of Veterans Affairs, EEOC Request

No. 05950455 (Sept. 28, 1995) (citing Thompson v. Dept. of the Army,

EEOC Request No. 05910474.

In the instant case, appellant contends that he was unaware of the time

limit for contacting an EEO counselor. We find, however, that appellant

had constructive knowledge of the time limit. See Santiago v. U.S. Postal

Service, EEOC Request No. 05950272 (July 6, 1995). The agency provided

sufficient evidence, showing that an EEO poster was present at appellant's

work location and that appellant was or should have been familiar with

the EEO process. Therefore, the Commission finds that the agency properly

dismissed the complaint for untimely counselor contact.

Accordingly, the agency's decision dismissing the 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 7, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations