Ronald Williams, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01973397 (E.E.O.C. Sep. 17, 1999)

01973397

09-17-1999

Ronald Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ronald Williams v. United States Postal Service

01973397

September 17, 1999

Ronald Williams, )

Appellant, )

)

v. ) Appeal No. 01973397

) Agency No. 4-I-630-1164-94

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 18, 1997, appellant filed an appeal of a February 12, 1997 final

agency decision, dismissing his complaint for failure to contact an EEO

Counselor in a timely manner, pursuant to 29 C.F.R. �1614.107(b).<1>

Appellant was terminated by the agency in 1989, and subsequently sought

reinstatement. In its final decision, the agency identified allegation

(1) of appellant's complaint as whether he was discriminated against

on the basis of mental disability when on August 19, 1993, his request

for reinstatement was denied. In dismissing allegation (1) for untimely

EEO contact, the agency stated that although appellant had a reasonable

suspicion of discrimination and had notice of his EEO rights, he failed to

request EEO counseling until June 6, 1994, which was beyond the requisite

45-day limitation period.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved

person initiate contact with a Counselor within 45 days of the date of the

matter alleged to be discriminatory or, in the case of a personnel action,

within 45 days of the effective date of the action. EEOC Regulation 29

C.F.R. �1614.105(a)(2) provides that the agency or the Commission shall

extend the 45-day time limit when the individual shows that he or she

was not notified of the time limits and was not otherwise aware of them,

that he or she did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite

due diligence he or she was prevented by circumstances beyond his or

her control from contacting the Counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits in

Part 1614 are subject to waiver, estoppel and equitable tolling.

As an initial matter, the Commission finds that the agency failed to

identify and address all of the issues raised in appellant's complaint.

In his June 26, 1996 complaint and an accompanying narrative, not only

did appellant raise allegation (1), but he also alleged that he was

discriminated against when he was terminated by the agency on July 6,

1989. Appellant also raised the issue of his termination on appeal.

The Commission has held that failure to address an issue raised in a

complaint is tantamount to a dismissal of the issue. The Commission

therefore identifies appellant's termination as allegation (2) of

his complaint and finds that the agency's dismissal of allegation (2)

was improper.

Regarding allegation (1), the Commission is unable to determine the

propriety of the agency's dismissal. In his June 3, 1994 Request

for Counseling, appellant alleged that two weeks prior, he "[received]

knowledge of laws and rights." It appears from the Request for Counseling

that appellant is alleging that he was unaware of his EEO rights.

Although in its final decision, the agency stated that appellant had

notice of his EEO rights, the agency has not provided any supporting

documentation that during the relevant time period, appellant had

actual or constructive notice of the applicable limitation period for

contacting an EEO Counselor. Without specific evidence that notices or

posters containing the time limit were conspicuously posted or specific

evidence that appellant was otherwise aware of the time limit during the

relevant time period, the Commission cannot determine the timeliness of

appellant's EEO contact. A generalized affirmation that an agency posted

EEO information, without specific evidence that the poster contained

notice of the time limits, is insufficient for constructive knowledge of

the time limits for EEO Counselor contact. See York v. Department of

Veterans Affairs, EEOC Request No. 05940575 (November 3, 1994); Pride

v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993).

In addition, it is well-settled that where, as here, there is an issue of

timeliness, "[a]n agency always bears the burden of obtaining sufficient

information to support a reasoned determination as to timeliness."

Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,

1992). The Commission has also held that the EEO Counselor must inquire

into the reasons for the delay when a complainant initiates counseling

beyond the 45-day time limit for doing so. See McDonald v. Department

of Transportation, EEOC Request No. 05960642 (August 11, 1998); Franklin

v. Department of Defense, EEOC Request No. 05910767 (December 9, 1991).

Here, the agency failed to produce sufficient evidence to support its

contention that it fulfilled its statutory duty of conspicuously posting

EEO information or that appellant was otherwise notified or aware of

his rights. Therefore, the Commission cannot find that the appellant

had actual or constructive notice of the time limits for contacting an

EEO Counselor. Accordingly, allegation (1) is hereby remanded for a

supplemental investigation.

Finally, the Commission notes that appellant also asserts on appeal

that he did not contact the EEO Counselor because: (1) he was not

mentally or physically capable of doing so because he was hospitalized

and being treated for mental illness and also incarcerated; (2) he was

prohibited from entering on the agency's premises, other than to conduct

business at the credit union; (3) agency inspectors threatened him with

re-incarceration; and (4) union officials advised him not to pursue

his claim. In view of the remand for a supplemental investigation of

appellant's knowledge of his EEO rights, we will not address these

additional arguments at this time, but they should be addressed, as

appropriate, in any determination rendered by the agency.

Consistent with the foregoing discussion, the agency's dismissal of

allegation (1) is VACATED and allegation (1) is REMANDED to the agency

for a supplemental investigation. The agency's dismissal of allegation

(2) is REVERSED and allegation (2) is REMANDED to the agency for further

processing.

ORDER

The agency is ORDERED to take the following actions:

1. The agency shall conduct an inquiry sufficient to enable it to make a

reasoned determination as to the timeliness of appellant's EEO Counselor

contact regarding allegation (1), including, but not limited to, whether

appellant had actual or constructive knowledge of the time limit for

contacting an EEO Counselor more than 45 days before he contacted an

EEO Counselor. The agency shall supplement the record with copies of

the EEO posters (or affidavits describing the posters if the posters

are unavailable) and any other evidence showing that appellant was

informed, or should have known, of the time limits for contacting an

EEO Counselor.

2. After completion of the supplemental investigation, the agency

shall decide whether to process or dismiss allegations (1) and (2).

29 C.F.R. �1614.106 et seq. The supplemental investigation and issuance

of a notice of processing and/or final agency decision must be completed

within 45 (forty-five) calendar days of the date this decision becomes

final. The agency shall not fragment the allegations of the complaint

by issuing a decision on part of the complaint but shall address both

allegations in one decision, i.e., indicating acceptance and/or dismissal

of both allegations.

A copy of the report of supplemental investigation with supporting

documentation, notice of processing and/or a copy of the new final agency

decision must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

September 17, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The agency failed to provide a copy of a certified mail return receipt

or any other material capable of establishing the date appellant received

the agency's final decision. Accordingly, since the agency failed to

submit evidence of the date of receipt, the Commission presumes that

appellant's appeal was filed within thirty (30) days of receipt of the

agency's final decision and the appeal is accepted as timely. See, 29

C.F.R. �1614.402.