01976279
10-07-1998
Charles A. Bibeau, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles A. Bibeau v. United States Postal Service
01976279
October 7, 1998
Charles A. Bibeau, )
Appellant, )
)
v. ) Appeal No. 01976279
) Agency No. 4-H-310-1146-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's July 18, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor.
This complaint was the subject of a prior Commission decision in Bibeau
v. United States Postal Serv., EEOC Appeal No. 01966049 (Apr. 23, 1997).
In EEOC Appeal No. 01966049 the Commission stated:
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 45 day time limit shall be extended when the
individual shows that he was not notified of the time limits and was
not otherwise aware of them or that he did not know and reasonably
should not have known that the discriminatory matter occurred.
29 C.F.R. �1614.105(a)(2).
. . . .
The complaint concerns the agency's alleged discriminatory failure
to hire appellant in July 1995. Appellant initially contacted an EEO
Counselor on May 14, 1996. . . .
Appellant also argues that he was unaware of the 45 day deadline
for contacting an EEO Counselor. It is the Commission's policy that
constructive knowledge will be imputed to an employee when an employer has
fulfilled its obligations under Title VII. Thompson v. Department of the
Army, EEOC Request No. 05910474 (Sept. 12, 1991) (citing Kale v. Combined
Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988)). In the instant
case, the agency stated in its dismissal that EEO posters containing
the time limits were on display and that appellant was provided with
EEO information during the orientation period. The Commission has held
that information in an EEO Counselor's report regarding posting of EEO
information was inadequate to support application of a constructive
notice rule. Pride v. United States Postal Serv., EEOC Request
No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala, 113 S. Ct. 1940
(1993)). The Commission found in Pride that the agency had merely
made a generalized affirmation that it posted EEO information. Id.
The Commission found that it could not conclude that appellant's contact
of an EEO Counselor was untimely without specific evidence that the
poster contained notice of the time limit. Id.
In the instant matter the agency has failed to produce any evidence
showing that appellant had actual or constructive notice of the time
limit for contacting an EEO Counselor. The agency has not supplied
a copy of the EEO poster(s) or an affidavit describing the poster(s).
The agency has not supplied a copy of the EEO information purportedly
provided to appellant during the orientation period or any evidence
showing that appellant received such information. Therefore, we can
not find that appellant had actual or constructive notice of the time
limits for contacting an EEO Counselor. The Commission shall remand
the complaint to the agency so that it may supplement the record with
evidence showing whether appellant had actual or constructive notice of
the time limit for contacting an EEO Counselor more than 45 days before
he contacted an EEO Counselor.
Bibeau, EEOC Appeal No. 01966049.
The agency has submitted an affidavit, photographs of EEO posters,
copies of materials from a training booklet, and copies of EEO posters.
The affidavit from Person A dated May 28, 1997 does not claim that the EEO
posters were posted more than 45 days before appellant initially contacted
an EEO Counselor on May 14, 1996. There is no affidavit in the record
stating the EEO posters in the record or other EEO information containing
time deadlines were ever posted or distributed to appellant more than 45
days prior to May 14, 1996. Although Person A refers in the affidavit to
"stand-up talks," Person A does not state that the talks occurred 45 days
prior to May 14, 1996 or that the talks explained the time deadline for
contacting an EEO Counselor. Page 21 of the training booklet, the page
relied upon by the agency in its decision, does not provide information
on the time deadline for contacting an EEO Counselor.
The Commission finds that the agency has failed to show that appellant
had actual or constructive notice of the time limits for contacting an
EEO Counselor more than 45 days before he contacted an EEO Counselor.
Thus, we can not find that appellant failed to timely contact an EEO
Counselor. The agency has had two opportunities to submit a record to
the Commission showing that appellant had actual or constructive notice
of the time deadline for contacting an EEO Counselor more than 45 days
before he contacted an EEO Counselor. Because the agency has failed to
make such a showing, we shall reverse the agency's decision and order
the agency to resume processing the complaint.
The agency's decision dismissing the complaint is REVERSED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (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� (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:
October 7, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations