Phyllis M. Parker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
05990506 (E.E.O.C. Jul. 10, 2000)

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.