01974670
01-19-1999
Leroy Pinckney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leroy Pinckney v. United States Postal Service
01974670
January 19, 1999
Leroy Pinckney, )
Appellant, )
)
v. ) Appeal No. 01974670
) Agency No. 4-H-335-0141-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's April 21, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. The agency defined the complaint as alleging that
appellant was discriminated against on June 14, 1996 when he was denied
employment with the agency due to his medical condition. The agency
found, and the EEO Counselor's report shows, that appellant initially
contacted an EEO Counselor on March 6, 1997.
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 the
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.
29 C.F.R. �1614.105(a)(2).
On appeal appellant's argument can be fairly read as claiming that
appellant was unaware of the time deadlines for contacting an EEO
Counselor until February 20, 1997. It is the Commission's policy that
constructive knowledge will be imputed to an employee when an employer
has fulfilled its obligations under Title VII. 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)).
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 Serv.,
EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113
S. Ct. 1940 (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 the instant matter the agency has failed to produce any evidence
showing that appellant had actual or constructive notice of the time
limit for contacting an EEO Counselor. 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 appellant had actual or constructive notice of the time limits for
contacting an EEO Counselor. The Commission shall remand the complaint
to the agency so that it may supplement the record with evidence showing
whether appellant 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 appellant 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 appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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:
January 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations