01A10134_r
03-11-2002
Marshall D. Wilson, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Marshall D. Wilson v. Department of the Treasury
01A10134
March 11, 2002
.
Marshall D. Wilson,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A10134
Agency No. 00-3227
DECISION
Complainant initiated contact with an EEO Counselor on April 26, 2000.
On July 13, 2000, complainant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his race
(White), sex (male), age (55), disability (hearing), and in reprisal
for his previous EEO activity under Title VII of the Civil Rights Act,
the Rehabilitation Act, and the Age Discrimination in Employment Act
when on November 18, 1999, he learned that he had not been selected for
the position of Management/Program Assistant, GS-344-6/7.
In its decision dated August 31, 2000, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that complainant
failed to contact an EEO Counselor in a timely manner. The agency
determined that complainant's EEO contact of April 26, 2000, was more
than 45 days after he learned of his nonselection. The agency noted
that complainant asked his union steward on November 18, 1999, to look
into his nonselection and inform him what caused him not to be selected.
The agency stated that complainant indicated that he did not contact the
EEO Counselor in a timely manner because he thought he had to wait until
he was returned to his regular bargaining unit position before he could
file an EEO complaint. According to the agency, instructions with regard
to the necessary time frame for initiating informal counseling have been
posted for several years and made available to complainant. The agency
determined that complainant failed to diligently pursue his complaint.
On appeal, complainant claims that a Manager and his union representative
informed him that he could not file a complaint as long as he was
serving as a Manager. Complainant states that he filed the instant
complaint as soon as he was returned to a bargaining unit position.
Complainant maintains that his union representative did not inform him
of the EEO time frame for filing a complaint.
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 rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance 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 Service,
EEOC Request No. 05930134 (August 19, 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 complainant's contact of an EEO Counselor was untimely
without specific evidence that the poster contained notice of the
time limit. Id.
We note that in documentation submitted to the agency on August 29, 2000,
complainant stated that he was unaware of any time frames in filing an EEO
complaint. The agency has not established that complainant had actual or
constructive notice of the 45-day limitation period for contacting an EEO
Counselor. Accordingly, the agency's decision to dismiss complainant's
complaint on the grounds of untimely EEO contact is REVERSED. This matter
is hereby REMANDED for further processing pursuant to the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 11, 2002
__________________
Date