01984072_r
05-27-1999
Sherman Rayford, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sherman Rayford, )
Appellant, )
)
v. ) Appeal No. 01984072
) Agency No. 4-G-700-1301-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. In a formal
complaint dated September 29, 1995, appellant alleged that he was
subjected to discrimination on the basis of physical disability
(osteoarthritis in shoulder) when:
Appellant was ordered to carry excessive weight on March 22, 1994,
which resulted in an on-the-job injury;
Upon appellant's return to work the next day, appellant was harassed
about his work performance; and
Whenever appellant used sick leave because of his injury, appellant
was not compensated for the leave he used.
In a November 27, 1995 final agency decision (FAD), the agency
dismissed appellant's complaint for untimely counselor contact.
Following appellant's appeal, the Commission remanded the allegations
for a determination of whether appellant had constructive knowledge of
applicable time limits. EEOC Appeal No. 01961628 (November 26, 1996).
On remand, the agency issued a second FAD on March 17, 1997, finding that
appellant had constructive knowledge of the time limitation based on
an affidavit from an agency official which stated that EEO information
was posted on bulletin boards in appellant's worksite. In EEOC Appeal
No. 01974028 (January 22, 1998), the Commission again remanded appellant's
complaint, because the agency failed to provide a copy of the affidavit
in the complaint record submitted on appeal.
On remand, the agency issued a third FAD, dated March 19, 1998, on
which appellant filed the present appeal. In its March 19, 1998 FAD,
the agency found that appellant was injured in March 1994, but did not
initiate contact with an EEO Counselor until July 25, 1995. Further, the
agency provided, inter alia, an affidavit from an agency official which
states that EEO information, including the relevant time limitations,
was posted on bulletin boards at the front and rear of appellant's
worksite at the time appellant was injured.
In the present appeal, appellant argues that the Commission should not
consider the affidavit, because it was made by one of the agency officials
responsible for the alleged discrimination against appellant. Further,
appellant provided a statement, signed by a number of his co-workers, that
EEO information was not posted on every bulletin board in the facility.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
under EEOC regulations for publicizing the time limits for contacting an
EEO Counselor. See Starr v. Department of Veterans Affairs, EEOC Request
No. 05950455 (Sept. 2, 1995) (citing Thompson v. Department of the Army,
EEOC Request No. 05910474 (Sept. 12, 1991). The Commission requires,
however, that an agency provide independent evidence of record, as
opposed to a mere generalized statement, that it posted EEO information
containing the relevant time limits for contacting an EEO Counselor.
Kovarik v. Department of Defense (Army and Air Force Exchange Service),
EEOC Request No. 05930898 (December 9, 1993). An affidavit from a
managerial employee that the relevant EEO information was posted is
sufficient evidence to impute constructive knowledge. Accordingly,
the agency's decision to dismiss appellant's complaint is AFFIRMED.
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 (S0993)
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:
May 27, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations