Mark E. Theis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a03582 (E.E.O.C. Jul. 20, 2000)

01a03582

07-20-2000

Mark E. Theis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mark E. Theis v. U.S. Postal Service

01A03582

July 20, 2000

.

Mark E. Theis,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03582

Agency No. 4-C-450-0015-00

DECISION

Complainant filed a timely appeal with this Commission from an

agency decision dismissing his complaint of unlawful employment

discrimination brought under Section 501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791 et seq.<1> We accept the appeal

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405).

The record shows that complainant contacted an EEO Counselor on September

27, 1999, and subsequently filed a formal complaint on November 2,

1999. In his complaint, complainant alleged that he was subjected to

discrimination on the basis of disability when the agency failed to

hire him for a career position in May 1975, and that he was not informed

about his EEO rights.

The agency dismissed claim for untimely EEO Counselor contact, noting

that complainant had been employed at the agency since 1982, and that

affidavit testimony demonstrates that complainant continuously worked

in areas where EEO posters contained the 45-day EEO Counselor contact

requirement. The agency also found that complainant did not successfully

show a continuing violation because he should have known his EEO rights

in 1982 when he was hired, and yet did not seek EEO counseling at that

time regarding his 1975 non-selection.<2> Additionally, the agency also

determined that the doctrine of laches applies in this case to bar the

instant complaint because complainant waited twenty-four and one-half

years to file a complaint.

Complainant has not submitted a statement on appeal. The agency requests

that we affirm its decision in this case.

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

referred to as 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.

The Commission determines that the agency properly found that complainant

was on notice of the 45-day time limitation for contacting an EEO

Counselor as early as 1982, by virtue of EEO posters at his work site

which specifically set forth this requirement. 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 employer has fulfilled its obligation of informing employees of their

EEO rights and obligations. See Thompson v. Department of the Army, EEOC

Requet No. 05910474 (September 12, 1991). Here, the record contains an

affidavit from a former supervisor at the complainant's work facility who

attests that an EEO poster with the 45-day time limit was displayed at the

drinking fountain from 1987 to 2000. We determine that this is sufficient

to impute constructive knowledge of the 45-day time to complainant as

early as 1987, such that his September 1999 EEO contact concerning his

1975 non-selection is untimely. Accordingly, we find that the agency

properly dismissed the instant complaint and we AFFIRM the decision.

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 (S0400)

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. 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 (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:

July 20, 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.

2After careful review, we find nothing in complainant's statements to

suggest that he is asserting a continuing violation theory. To do so,

as a threshold prerequisite, complainant would have to show that he

has at least one claim which was timely brought to the attention of the

EEO counselor. Here, we find that complainant does not contend to have

any other timely EEO matters, so that a continuing violation theory is

not viable, and we will not further discuss it herein.