0120114316
02-17-2012
Timothy W. Carr, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Timothy W. Carr,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120114316
Agency No. 4J-630-0105-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 19, 2011, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.
BACKGROUND
During the relevant period, Complainant worked as a City Carrier at the
Agency’s Capitol View Station facility in Jefferson City, Missouri.
On August 3, 2011, Complainant filed a formal complaint. He alleged that
the Agency subjected him to discrimination on the basis of sex (male)
when the Postmaster approved a female co-worker’s request for advanced
sick leave on May 6, 2011, but the Agency denied Complainant’s request
for 240 hours of advanced sick leave on January 18, 2011. Complainant’s
first contact with an EEO Counselor was on May 16, 2011.
The Agency dismissed the complaint for untimely EEO contact, referencing
the Commission regulation at 29 C.F.R. § 1614.107(a)(2). The Agency’s
decision stated that Complainant’s contact was 118 days after he
received the Agency’s decision denying his request for advanced sick
leave.1 The Agency concluded that Complainant provided no evidence
that Complainant was not aware of the time limit for contacting an EEO
Counselor. The record contains an affidavit from the acting facility
manager who attests that the facility displayed an EEO Poster informing
employees of the time frame for filing a complaint.
The instant appeal followed. On appeal, Complainant asserts that he was
unaware that he had been discriminated against until May 6, 2011, when
he learned that the Agency approved his female co-worker’s request for
40 hours of advanced sick leave even though she was on leave restriction
while he was not. He also asserts he was not aware of the limitation
period for seeking EEO counseling and submits a signed statement from
nine employees in his work area who state that they were unaware of an
EEO poster in their office and no one made them aware of the poster.
ANALYSIS AND FINDINGS
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 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.
In this case, we find that the only personnel action involving Complainant
occurred on January 18, 2011, when Complainant’s request for advanced
leave was denied. Complainant did not initiate contact with an EEO
Counselor until May 15, 2011, which is beyond the forty-five (45) day
limitation period.
As already noted, Complainant has argued that he had no actual or
constructive knowledge of the limitation period for filing a complaint
and, therefore, his delay should be excused. 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." Guy, v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that “the agency has the burden of providing evidence and/or
proof to support its final decisions.” See also Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992).
In this case, we find that the Agency provided insufficient documentation
that Complainant was on notice of the limitation period for contacting an
EEO counselor. The Agency’s sole evidence in support of its contention
that he knew or should have known about the limitation period is an
affidavit from a management official indicating the facility displayed
an EEO poster containing the relevant timeframe. However, Complainant
has successfully rebutted this evidence with a statement signed by nine
of his coworkers stating that the work group had never been informed of
the limitation period via a “stand-up” talk, and had never seen and
were otherwise unaware of an EEO poster in the facility containing the
time limit. Based on this evidence, we find that this is an appropriate
case to extend the time limits as Complainant has produced sufficient
evidence to show he was not notified of the time limits and was not
otherwise aware of them.
Accordingly, the Agency’s dismissal is REVERSED and the complaint is
REMANDED to the Agency for further processing in accordance with the
following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC
20013. 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) (1994 & Supp. IV 1999).
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 (M0610)
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 tends 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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 17, 2012
__________________
Date
1 This denial of advance leave claim was also the subject of a separate
grievance proceeding. An Arbitrator ordered the restoration of the
leave at issue. Complainant now seeks compensatory damages on his sex
discrimination claim.
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01-2011-4316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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