05990506
07-10-2000
Phyllis M. Parker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Phyllis M. Parker v. United States Postal Service
05990506
July 10, 2000
Phyllis M. Parker, )
Complainant, )
) Request No. 05990506
v. ) Appeal No. 01985762
) Agency No. 1-J-461-0097-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 22, 1999, the Equal Employment Opportunity Commission
(the Commission) received a timely request from Phyllis M. Parker
(complainant) to reconsider the decision in Phyllis M. Parker v. United
States Postal Service, EEOC Appeal No. 01985762 (March 2, 1999).<1> EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision where the requesting
party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
For the reasons set forth herein, complainant's request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of complainant's complaint for failure to contact
the EEO office in a timely manner.
BACKGROUND
Complainant contacted an EEO counselor on April 23, 1998, and filed an
EEO complaint in which she alleged that the agency discriminated against
her based on a perceived physical disability (chronic left shoulder) when
the agency rated her a �High Risk� and denied her employment on December
17, 1997. In its final agency decision (FAD), the agency dismissed her
complaint for failing to contact the EEO office within the forty-five (45)
day limitation period. Complainant appealed the FAD to the Commission
and argued that she was unaware that she had the option to file an EEO
complaint as a transitional employee until she was informed otherwise by
her union president. The previous decision summarily affirmed the FAD.
On request for reconsideration, complainant reiterates her argument that
she was unaware that she could file an EEO complaint as a transitional
employee.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is not merely a form of a second appeal.
Regensberg v. U.S. Postal Service, EEOC Request No. 05900850 (September
7, 1990). After a careful review of the record, the Commission finds
that complainant's request for reconsideration does meet the regulatory
criteria of 29 C.F.R. � 1614.405(b).
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint
that fails to comply with the applicable time limits contained in 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.105), 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as 29 C.F.R. � 1614.106), and �
1614.204(c), unless the agency extends the time limits in accordance
with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. � 1614.105(a)(2)
allows the agency or the Commission to extend the time limit if the
complainant can establish that complainant was not aware of the time
limit, that complainant did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence complainant was prevented by circumstances beyond
her control from contacting the EEO Counselor within the time limit,
or for other reasons considered sufficient by the agency or Commission.
In the instant case, complainant argues that she was unaware that she
could file an EEO complaint. The Commission imputes constructive
knowledge of EEO procedures to an employee when an agency complies
with notice posting requirements. The agency was required to produce
evidence that it took sufficient actions to justify the inference of
constructive knowledge. The Commission has held that blanket conclusions,
without supporting affidavits or other evidence, were insufficient
to demonstrate the agency had complied with posting requirements and
it declined to impute knowledge of the EEO complaint process to the
employee. Thompson v. Department of the Army, EEOC Request No. 05910474
(September 12, 1991). Upon review of the record, the agency failed to
include any evidence to substantiate its claims that there were posters
providing information regarding EEO counseling, including the time limit,
in prominent locations at the time of alleged incidents. Therefore,
we find that the agency has failed to provide evidence to support its
final decision to dismiss complainant's complaint for failure to meet
with the applicable time limit.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The decision of the Commission in Appeal No. 01985762 (March 2, 1999)
and the final agency decision is REVERSED. There is no further right
of administrative appeal on the decision of the Commission on a Request
to Reconsider.
ORDER (E1199)
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 an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
July 10, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ ________________________
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.