01973397_r
09-17-1999
Ronald Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
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 Operations1The 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.