01983908
05-19-2000
Walter A. Rice, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Walter A. Rice v. United States Postal Service
01983908
May 19, 2000
Walter A. Rice, )
Complainant, )
)
v. ) Appeal No. 01983908
) Agency No. 1-I-632-0019-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 7, 1998, dismissing 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 Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal from
the agency's final decision in the above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint on the grounds of untimely EEO Counselor contact.
BACKGROUND
For the relevant period of time, complainant was employed by the
agency as a casual mail handler. At the time complainant was hired,
he was informed that he may have to work over eight (8) hours per day.
On August 12, 1997, complainant handed to his supervisor a letter from
his physician recommending that he only work forty (40) hours a week.
Subsequently, on August 13, 1997, complainant was informed by his
supervisor that if he could not work a fourteen (14) hour day, he would
either be terminated or forced to resign. Thereafter, on September 10,
1997, complainant was notified by letter that his appointment would end
at midnight on September 12, 1997.
On October 14, 1997, believing that he was the victim of discrimination,
complainant wrote a letter to the Equal Employment Opportunity
Commission's District office in St. Louis Missouri. The letter informed
the EEOC that his appointment was terminated because, due to his medical
restriction, he could not work a fourteen (14) hour day. In closing,
complainant stated that any help the EEOC could provide would be
greatly appreciated. In response to this letter, the EEOC District
Office in St. Louis replied and informed complainant that the EEOC does
not have jurisdiction over Federal employers until the internal EEO
complaint reaches the hearing stage. In addition, the letter informed
complainant of the proper EEO office to contact regarding the filing of
a discrimination complaint.
On November 12, 1997, complainant initiated contact with an EEO Counselor.
During the counseling period, complainant stated that his position
was terminated because he could not work over a forty (40) hour week.
Counseling failed, and on November 22, 1997, complainant filed a formal
complainant of discrimination claiming that he was the victim of unlawful
employment discrimination on the basis of his disability (mental).
The complaint was comprised of the matter for which complainant underwent
EEO counseling, discussed above.
On April 7, 1998, the agency issued a final decision dismissing the
present complaint on the grounds of untimely EEO Counselor contact.
The agency found that the alleged discriminatory event occurred on
September 12, 1997 and that complainant's initial EEO Counselor contact
on November 12, 1997, was more than forty-five days after the alleged
discriminatory event purportedly occurred.
The record contains a signed statement of a Human Resources Specialist
indicating that the facility wherein complainant was employed had an
EEO poster on display. A copy of the poster contained in the record
indicates the time limit for initiating EEO contact, as well as the
title and address of the individual who should be contacted to present
an EEO problem.
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 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the present case, complainant's initial contact on November 12,
1997, with the agency's EEO office was beyond the forty-five (45) day
limitations period. While complainant originally contacted the EEOC
District Office, the record indicates that complainant was on notice
of the proper agency official to contact, as well as the applicable
time limit, for initiating an EEO complaint. 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. Thompson v. Department
of the Army, EEOC Request 05910474 (September 12, 1991). Therefore,
the Commission finds that the agency properly dismissed the present
complaint for untimely EEO Counselor contact.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint for untimely
EEO Counselor contact.
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:
May 19, 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.