Leroy Pinckey, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 3, 2000
01993836 (E.E.O.C. Aug. 3, 2000)

01993836

08-03-2000

Leroy Pinckey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Leroy Pinckey, )

Complainant, )

)

v. ) Appeal No. 01993836

William J. Henderson, ) Agency No. 4H-335-0141-97

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On April 8, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on March 13, 1999,

pertaining to his complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of physical disability

(back) when:

On June 14, 1996, complainant was denied employment due to a medical

condition.

The record reveals that complainant filed his formal complaint on March

28, 1997. The agency dismissed this complaint on April 21, 1997, pursuant

to the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)),

for untimely EEO Counselor contact. Specifically, the agency stated

that although the alleged discriminatory event occurred on June 14, 1996,

complainant failed to contact an EEO Counselor until March 7, 1999, over

seven months beyond the applicable limitations period. Complainant filed

an appeal from the agency's April 21, 1997 decision, claiming that he

was not aware of the forty-five (45) day time limit for contacting an

EEO Counselor. The Commission ordered a supplemental investigation to

determine whether complainant had actual or constructive knowledge

of the time limit for contacting an EEO Counselor more than forty-five

(45) days before his actual contact with an EEO Counselor. Pinckney

v. United States Postal Service, EEOC Appeal No. 01974670 (January 19,

1999).

The agency conducted the supplemental investigation and issued a

new final agency decision on March 13, 1999, dismissing complainant's

complaint on the grounds of untimely EEO Counselor contact. 29 C.F.R. �

1614.107(a)(2)). Specifically, the agency stated that as a result

of its supplemental investigation, it concluded that complainant had

constructive notice of EEO filing procedures and the time limits for

contacting an EEO Counselor. In its decision, the agency relied on

an affidavit from the agency's Human Resources Specialist to show that

the poster outlining EEO filing procedures was located just outside the

Personnel Office where complainant was interviewed. Thus, finding that

complainant had constructive knowledge of the time limits for contacting

an EEO Counselor, the agency concluded that complainant's March 7,

1999 counselor contact was untimely.

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.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

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

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Regarding the placement of posters at the agency workplace, we

note that it is the Commission's policy that constructive knowledge

will be imputed to an employee when an employee has fulfilled its

obligation of informing employees of their rights and responsibilities

under Title VII. See Thomas v. Department of the Army, EEOC Request

No. 05910474 (September 12, 1991). However, the Commission has held

that a generalized affirmation that an agency posted EEO information,

without specific evidence that the poster contained notice of the time

limits is insufficient for constructive knowledge of the time limits

for EEO Counselor contact. See Pride v. United States Postal Service,

EEOC Request No. 05930134 (August 19, 1993).

In the present case, the agency's final decision refers to a poster

outlining EEO filing procedures located just outside the agency's

Personnel Office. The agency decision also refers to an affidavit from

the Human Resources Specialist attesting to the location of this poster.

We note that neither the affidavit from the Human Resources Specialist

nor a copy of the poster itself was included in the record. In the

absence of this evidence, we find that the record is insufficient to

impute complainant with constructive knowledge of the time limitations for

contacting an EEO Counselor. Thus, the agency has failed to substantiate

the bases for its final decision. See Marshall v. Department of the Navy,

EEOC Request No. 05910685 (September 6, 1991).

Accordingly, the agency's decision was improper and is REVERSED and

the complaint is REMANDED for further processing in accordance with the

Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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:

August 3, 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.