01991204
11-28-2000
Timothy R. Whitworth, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Timothy R. Whitworth v. United States Postal Service
01991204
November 28, 2000
.
Timothy R. Whitworth,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991204
Agency No. 4-H-350-0335-98
DECISION
Complainant filed a timely appeal with this Commission from the agency's
November 5, 1998 decision to dismiss his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of disability (right elbow, cubital tunnel syndrome, and
chronic arthritis) when he was denied light duty from November 3, 1994
to February 1, 1995, and December 1995 until January 1996.
The agency dismissed the complaint for untimely counselor contact.
Specifically, the agency found that complainant failed to contact an
EEO Counselor until July 31, 1998, more than two years after the most
recent event alleged. Further, the agency found that complainant had
constructive notice of EEO time limitations, because relevant information
was posted at complainant's facility, and was provided to complainant
during his orientation as a new employee.
On appeal, complainant argues that he suffered continuously from November
3, 1994, until July 29, 1998 (when he signed a mediation agreement on
a �related matter�). Complainant contends that he clearly contacted a
counselor within forty-five days of the continuing violation. Complainant
notes that he addressed the continual nature of his claim in counseling,
but only listed the dates when he was not allowed to work in his formal
complaint. According to complainant, he presented notes from his doctors
in November 1994, and again in December 1995. These notes outlined
complainant's medical restrictions. Upon receiving them, complainant was
sent home and forced to use sick leave. Complainant argues that during
this period, the agency never once offered him a light-duty assignment.
Complainant reiterates that he was not aware of the EEO process until
July 1998, and previously believed the Office of Workers' Compensation
Program (OWCP) was the only forum to raise his claims.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
alleged discriminatory event. Generally, the agency may dismiss
claims that fail to comply with this time limit. See 29 C.F.R. �
1614.107(a)(2). However, EEOC Regulations also provide for extensions
to the time limit 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. 29 C.F.R. � 1614.105(a)(2).
The agency contends that complainant had constructive notice of the time
limits, but presented no copies of the relevant postings or training
materials (or proof that complainant attended the training in question).
Without such evidence, the Commission cannot find that complainant was
aware of the applicable time limits. See McGah v. Department of Justice,
EEOC Request No. 05980338 (Dec. 9, 1999). Therefore, the agency's
dismissal is REVERSED.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for further investigation.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 28, 2000
__________________
Date