01992364_r
10-21-1999
Larry D. Thomas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Larry D. Thomas, )
Appellant, )
)
v. ) Appeal No. 01992364
) Agency No. 4-D-290-0005-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final agency decision was issued on December
31, 1998. The appeal was postmarked January 29, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
1-2 of appellant's complaint on the grounds that appellant failed to
contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on September 16, 1998.
On November 12, 1998, appellant filed a formal EEO complaint wherein
he alleged that he had been subjected to discriminatory harassment
on the bases of his race (black) and in reprisal for his previous EEO
activity when:
1. On April 10, 1998, the Supervisor wanted him to do collections because
another employee did not want to do them, and when the Supervisor spoke to
the shop steward about the issue, the Supervisor stated, using demeaning
gestures, that appellant would not have to do collections but he would
have a pigtail (part of another route) waiting for him when he returned
from the street.
2. On June 30, 1998, appellant approached the Supervisor regarding the
special treatment and the perception of discrimination. Appellant spoke
to him about two employees not being required to pull collections when
they were scheduled for it, and about these employees being repeatedly
given their days off while he and another employee were not given their
days off. Appellant stated that the Supervisor said to him that at
one time he may have been a racist but he is a different person and has
grown as a manager.
3. On September 14, 1998, appellant discovered that he had been scheduled
for station runs and late collections on September 16, 1998 and September
17, 1998, when two employees were available for work on those days.
A different supervisor told him that the schedule would not be changed
and he would have to deal with it.
In its final decision, the agency dismissed allegations 1-2 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner. The agency determined that appellant's EEO contact of
September 16, 1998, occurred 159 days and 78 days, respectively, after
the incidents set forth in allegations 1-2. Allegation 3 was accepted
for investigation.
On appeal, appellant contends that he was unaware of the 45-day limitation
period for contacting an EEO Counselor. Appellant claims that this
information is not accessible to employees by stand up sessions and it
is not something that he would know directly. Appellant states that had
he known of the time period, he would have contacted an EEO Counselor
instead of seeking to address his concerns through his chain of command.
In response, the agency asserts that appellant had constructive notice
of the 45-day limitation period. The agency submits an affidavit from
the Postmaster of appellant's facility. In the affidavit, the Postmaster
states that the EEO poster has been posted on the bulletin board at the
office for at least three years; that the poster describes how to present
an EEO problem; and that the problem is to be raised within 45 calendar
days of the date of the alleged discriminatory act. The Postmaster
further stated that periodic talks are given at the office on diversity,
EEO, and sexual harassment.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
It is the Commission's policy 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 No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit. Id.
In terms of allegations 1-2, appellant alleged that he was subjected to
discriminatory harassment on the dates of April 10, 1998, and June 30,
1998, respectively. Appellant did not initiate contact with an EEO
Counselor until September 16, 1998, after the expiration of the 45-day
limitation period. Appellant stated that he pursued his concerns
through his chain of command and thus, his EEO contact was delayed.
The Commission has previously held, however, that the use of internal
agency procedures to resolve a complaint does not toll the limitations
period for initiating an EEO complaint. See Williams v. United States
Postal Service, EEOC Request No. 05910291 (April 25, 1991). We note that
appellant claims that he was unaware of the 45-day limitation period
for contacting an EEO Counselor. The affidavit of the Postmaster of
appellant's work facility indicates that an EEO poster has been posted
on the bulletin board for the past three years. The Postmaster asserts
that the EEO poster states that an EEO problem is to be presented within
45 calendar days of the date of the alleged discriminatory act. We find
that the agency has established that appellant had constructive notice
of the proper time period for contacting an EEO Counselor at the time
of the incidents raised. Accordingly, the agency's decision to dismiss
allegations 1-2 of appellant's complaint on the grounds of untimely EEO
contact was proper and 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. 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 (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 21, 1999
DATE
Carlton
M. Hadden,
Acting
Director
Office of Federal Operations