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.