01975491
11-18-1998
Joseph F. Gerolamo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas)) Agency.
Joseph F. Gerolamo v. United States Postal Service
01975491
November 18, 1998
Joseph F. Gerolamo, )
Appellant, )
) Appeal No. 01975491
v. ) Agency No. 4C-190-1146-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas))
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final agency decision (FAD) was issued on
June 23, 1997. The appeal was received by the Commission on July 3,
1997. Accordingly, the appeal is timely, (See 29 C.F.R. � 1614.402(a)),
and is accepted in accordance with EEOC Order 960.001, as amended.
ISSUES PRESENTED
The issues on appeal are as follows: (1) Did the agency properly dismiss
appellant's complaint/Agency No. 4C-190-1146-96 on the basis that it
alleged claims identical to those previously filed in complaint/Agency
No. 4C-190-1091-96; and (2) Did the agency properly dismiss appellant's
for failing to initiate timely contact with an EEO Counselor.
BACKGROUND
The record indicates that appellant first contacted an EEO counselor with
respect to issue (2) on April 13, 1994 alleging race, national origin,
and retaliation discrimination when: (1) in December, 1993, appellant
was verbally abused and intimidated by his driver trainer and ultimately
did not receive a passing score on a portion of his driving test; and
(2) on April 4, 1994, appellant was not reinstated to his position as
a Letter Carrier following his recovery from a broken ankle.
Appellant received his notice of final interview on January 27,
1997. Appellant filed his formal complaint of discrimination on
February 9, 1997. A fair reading of his formal complaint alleges race
discrimination (perceived to be a American Indian) when he (1) received
a failing score on a portion of his driving test; and (2) was denied
reinstatement to the Letter Carrier position following his recovery from
a broken ankle.
While there is reference to a second informal contact with an EEO
Counselor on February 23, 1996 (Complaint/Agency No. 4C-190-1146-96)
in the record, the agency has failed to provide any documentation of
such contact. In addition, there is no indication from the record that
appellant ever filed a formal complaint with respect to issue (2).
ANALYSIS AND FINDINGS
Dismissal of Complaint/Agency No. 4C-190-1146-96
The agency dismissed Complaint/Agency No. 4C-190-1146-96 on the basis that
it raises allegations identical to Complaint/Agency No. 4C-190-1091-96.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
29 C.F.R. �1614.107(a). However, the record does not contain a copy of
the second complaint. Accordingly, it is impossible for the Commission
to determine whether or not the allegations raised by appellant in his
initial EEO Counselor contact in Complaint/Agency No. 4C-190-1146-96
are, in fact, identical to his allegations in Complaint/Agency
No. 4-C-190-1091-96. Clearly, it is the burden of the agency to have
evidence or proof to support its final decision. Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Therefore, the Commission finds that the agency's dismissal of
Complaint/Agency No. 4C-190-1146-96 on the grounds that it states the
same claim as that already raised in a previously filed EEO complaint
is not supported by the record and is hereby REVERSED. The allegations
raised in appellant's Complaint/Agency No. 4C-190-1146-96 are hereby
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
Dismissal of Complaint/Agency No. 4C-190-1091-96 Based on Untimely EEO
Counselor Contact
Reasonable Suspicion of Discrimination
The agency dismissed Complaint/Agency No. 4C-190-1091-96 based on
untimely initial EEO Counselor Contact and stated in its FAD that the
alleged discriminatory incident occurred in December, 1993.
EEO Regulation 29 C.F.R. �1614.105(a)(1)requires that complaints of
discrimination be brought to the attention of an EEO Counselor within 45
days of the alleged discriminatory event, or the effective date of an
alleged discriminatory personnel action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period for contacting an
EEO Counselor is triggered under the applicable regulations. See Ball
v. USPS, EEOC Request No. 05880247 (July 6, 1988). The time period is
triggered as soon as a complainant reasonably suspects discrimination,
and the complainant may not wait until all supporting facts have become
apparent. Queener v. USPS, EEOC Appeal No. 01966745 (July 16, 1997).
According to appellant, he did not form a reasonable suspicion of
discrimination until the agency failed to reinstate him to the position,
which occurred in April, 1994. Appellant alleges in his complaint that
during his first week of training, he was subjected to abusive language
and intimidation from a driver trainer and consequently failed a portion
of the driver examination. One week into the training, appellant broke
his ankle and could not work. According to appellant, the Manager of
Personnel assured him that when he recovered he would be sent a Letter
of Reinstatement and be taken back as a Letter Carrier. On March 31,
1994, appellant received a Letter of Reinstatement, filled it out, and
sent it back to the agency. Appellant then received a letter from the
agency advising him that he would be reinstated. Upon his arrival to the
agency on April 4, 1994, Appellant was advised, for the first time, that
he would not be reinstated. Appellant contends that he had no reason to
think he would not be reinstated until he returned to work and accordingly
had no reasonable suspicion of discrimination prior to April 4, 1994.
The agency contends that the alleged discriminatory event occurred in
December, 1993 and accordingly, appellant's initial EEO contact on April
13, 1994 was untimely.
Allegation One -- Receipt of a Failing Score on a Portion of the Driver
Test
Appellant, by his own admission, in his written statement at the informal
counseling stage, states that he was advised in December, 1993 that
he failed on portion of the driving test. Moreover, he states that he
believed that his driver trainer thought he was an Native American and
accordingly verbally abused and intimidated him during the driving test.
Therefore, we believe that appellant held a reasonable suspicion of
discrimination in December, 1993 with respect to the failing score on
his driving test.
Allegation Two -- Denial of Reinstatement
With respect to appellant's allegation of discrimination in failing to
be reinstated to the position of Letter Carrier, we find that appellant
did not have a reasonable suspicion of discrimination until April 4,
1994 because (1) he was assured by personnel that he would be reinstated
to his position; and (2) there was no indication that he would not
be reinstated prior to April 4, 1994. Moreover, the agency has not
presented any evidence to rebut appellant's assertion that he did
not have a reasonable suspicion of discrimination until April 4, 1994.
Accordingly, the agency's decision to dismiss this portion of Appellant's
complaint for failure to timely contact an EEO Counselor was likewise
improper. See Larry v. USPS, EEOC Appeal No. 01955688 (January 26,
1996); Ferguson v. USPS, EEOC Appeal No. 01975375 (April 13, 1995).
Actual or Constructive Notice of Rights and Obligations under Title VII
Appellant also alleges that he was unaware of the 45-day time limit.
According to appellant's statement on appeal, he was never advised,
verbally or in writing, regarding the processing of an EEO complaint.
He further states that he never saw any handouts, or posters at the
postal service explaining his rights and obligations.
While we find that appellant had a reasonable suspicion of discrimination
in December, 1993, with respect to his first allegation, we nevertheless
find that appellant was not notified of his rights, or of the applicable
limitation period prior to initiating EEO Counselor contact in April,
1994. Accordingly, we find that his EEO contact was timely with respect
to both allegations.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or
the Commission shall extend the 45-day time limit when the complainant
shows that he or she was not notified of the time limits and was not
otherwise aware of them. It is the Commission's policy that constructive
knowledge of the rights and obligations under Title VII will be imputed
to a complainant where the agency has fulfilled its statutory duty of
conspicuously posting EEO posters informing employees of their rights.
See Piccone v. USPS, EEOC Request No. 05950678 (April 11, 1996) citing
Brown v. Department of Commerce (EEOC Request No. 05890978 (January
10, 1990). However, the agency has the burden of producing sufficient
evidence to support its contention that it fulfilled its statutory
duty of conspicuously posting EEO information or otherwise notified the
complainant of his or her rights. In addition, the Commission has found
that constructive knowledge will not be imputed to a complainant without
specific evidence that the posters contained notice of the time limitation
for contacting an EEO Counselor Piccone v. USPS, EEOC Request No. 05950678
(April 11, 1996) citing Pride v. USPS, EEOC Request No. 05930134 (August
19, 1993); See also, Spell v. USPS, EEOC Request No. 05950095 (August 24,
1995).
In this case, the record contains no evidence showing that EEO posters
were prominently displayed at the facility in question, or that employees
were otherwise notified of the procedures for filing an EEO complaint
during the time of appellant's previous employment. Accordingly,
the agency's decision to dismiss appellant's complaint for failure to
timely contact an EEO Counselor is REVERSED, and the Complaint/Agency
No. 4-C-190-1091-96 is hereby REMANDED to the agency for further
processing in accordance with the following Order.
For the reasons stated herein, we REVERSE the agency's dismissal of
(1) Complaint/Agency No. 4C-190-1146-96; and (2) Complaint/Agency
No.4-C-190-1091-96. Accordingly, the complaints are REMANDED for
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 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 acknowledgment 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:
November 18, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations