01a00539
03-01-2001
Thomas A. Novak, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lake/Midwest Area Office), Agency.
Thomas A. Novak v. United States Postal Service
01A00539
March 1, 2001
.
Thomas A. Novak,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Great Lake/Midwest Area Office),
Agency.
Appeal No. 01A00539
Agency No. 1-J-482-0052-99
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final decision dated September 15, 1999, dismissing his complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In
his complaint, complainant alleged that he was subjected to discrimination
on the basis of age (DOB 2/11/46), when, by letters dated April 28,
1997 and March 11, 1998, his requests for reinstatement were denied.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R.�
1614.107 (a) (2), for untimely counselor contact. Specifically, the
agency noted that complainant did not contact an EEO counselor until
June 4, 1999, long past the 45-day time requirement. Complainant
argued on appeal that the time requirements should be waived because
he was not aware that he had an opportunity to file a complaint.
Complainant stated that he was not given constructive notice of
his rights to file a complaint. In response to this argument, the
agency stated that complainant was, or should have been, aware of the
time limit for contacting an EEO Counselor, as posters, including the
45-day time limit, were clearly on display at the Post Office where the
complainant had been employed. The agency concluded that complainant
provided insufficient reasons for waiving the time period and therefore
dismissed his complaint.
EEOC Regulation 29 C.F.R. � 1614.105(a) (1) requires that complaints
of discrimination 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.
EEOC Regulations 29 C.F.R. � 1614.105 (a) (2) 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 the case at hand, the agency established that posters explaining
the EEO process were posted throughout the building. Thus, whether or
not complainant was actually aware of the 45-day time limit, we find
that the agency established that complainant had constructive knowledge
of the time limit. See Santiago v. United States Postal Service, EEOC
Request No. 05950272 (July 6, 1995).
Accordingly, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we find that the agency
properly dismissed the complaint and hereby AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 1, 2001
Date