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.