01993879
08-03-2000
Tai C. Hu, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tai C. Hu v. United States Postal Service
01993879
August 3, 2000
Tai C. Hu, )
Complainant, )
)
v. ) Appeal No. 01993879
William J. Henderson, ) Agency No. 4-K-220-0012-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On April 13, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 18, 1999, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(unspecified) and age (D.O.B. January 9, 1951) when:
On June 16, 1998, complainant was harassed and given misleading
information, his pay check was held and he was threatened with
termination, and
On July 1, 1998, complainant was forced to resign.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), for untimely
EEO Counselor contact. The agency noted that the alleged discriminatory
actions occurred on June 16, 1998, and July 1, 1998, however, complainant
did not contact an EEO counselor until October 16, 1998, well beyond
the applicable limitations period.
On appeal, complainant states that he contacted the Falls Church
Postmaster on July 2, 1998, alleging that he was subjected to
discrimination and forced to resign on July 1, 1998. According to
complainant, he visited the agency's Falls Church Office twice but
received no response. Complainant states that on August 1, 1998, he
contacted the Merrifield Personnel Office and again complained about
discrimination but received no response. Complainant then states that
on September 24, 1998, his lawyer wrote to the Merrifield Office and two
weeks later was told to contact the EEO Office for help. Complainant
states that prior to the agency's response to the September 24, 1998
letter, he did not understand the EEO procedures.
The record contains a September 24, 1998 letter from complainant's lawyer
to the Postmaster at the agency's Merrifield Office. The letter alleges
that complainant was subjected to discrimination when he was forced to
resign on July 1, 1998. The letter states that complainant wants to
be reinstated to his old job and requests information on the procedures
necessary for complainant to apply for reinstatement. The record contains
no evidence of complainant's July 1, 1998 or August 1, 1998 contact with
the agency.
The record also contains an affidavit from the Supervisor of Customer
Service who worked in the same office as complainant since February 1997.
The affidavit states that a posting entitled �The Equal Opportunity is
the Law/ Discrimination is Prohibited�has been posted on the bulletin
board in the agency's swing room prior to the arrival of the Supervisor of
Customer Service in February 1997. The affidavit contains an attachment
entitled �Equal Employment Opportunity is the Law/Discrimination is
Prohibited� which explains the procedures for raising a complaint of
employment discrimination. Specifically, the poster states that an
employee or applicant for employment who feels he has been discriminated
against must contact the Senior EEO Complaints Processing Specialist
within forty-five (45) days of the alleged discriminatory act.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We note that 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. See Thompson v. Department of the Army, EEOC Request 05910474
(September 12, 1991). In the present case, the record reveals that the
agency posted EEO information, specifically, including the name of the
individual to contact to pursue a complaint of employment discrimination
as well as the time limit for EEO Counselor contact. We find, therefore,
that complainant had constructive knowledge of the applicable time limits.
See Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995).
Accordingly, the agency's decision dismissing complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
August 3, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
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.