0120090452
03-13-2009
Glenn T. Gravley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Glenn T. Gravley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090452
Agency No. 1H-304-0049-08
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated October 13, 2008, dismissing his complaint
of unlawful employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Complainant alleged that he was subjected
to discrimination based on his disability (polio) when upon taking a
reasonable accommodation reassignment to the Atlanta Bulk Mail Center
(BMC) effective May 12, 2007, his seniority was reduced to the same date,
resulting in him being classified as "excess" at the BMC and losing his
position there on or about August 29, 2008.
The FAD dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that the discriminatory event occurred in May
2007, but complainant did not initiate contact with an EEO counselor
until August 8, 2008, beyond the 45 calendar day time limit. An aggrieved
person must seek EEO counseling within 45 days of the date of the alleged
discriminatory action, or in the case of a personnel action, within 45
days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1)
& .107(a)(2). Under 29 C.F.R. � 1614.105(a)(2), an agency shall extend
the 45 day time limit to initiate EEO counseling where an individual
shows that he was not notified of the time limit and was not otherwise
aware of it.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Complainant contends, in part, that he was unaware of the 45 calendar
day time limit to initiate EEO counseling. The agency counters that
complainant has been an agency employee since 1988, and that there
was an EEO poster on display at his work location in an area that is
accessible and visible to all employees which advised of the 45 calendar
day time limit. In support thereof, the record contains an affidavit by
an official at the BMC stating such a poster has been on display there on
the employee bulletin board and/or other conspicuous places from May 6,
2006, to the present (December 12, 2007).
Complainant counters he has not previously engaged in EEO activity,
is unaware with the EEO process, and as an access monitor, a security
related position, who utilizes a wheelchair, his access was limited to
an entryway, security access room, and administrative offices on the
second level, and he does not recall seeing EEO posters in the areas in
which he was permitted access.
In light of complainant's contentions, and the agency not submitting
evidence that posters were posted in areas complainant worked or visited,
we decline to impute constructive notice of the 45 day time limit to
complainant.
Accordingly, the FAD is reversed.
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The remanded claim is whether complainant was
subjected to discrimination based on his disability (polio) when upon
taking a reasonable accommodation reassignment to the Atlanta Bulk Mail
Center (BMC) effective May 12, 2007, his seniority was reduced to the
same date, resulting in him being classified as "excess" at the BMC and
losing his position there on or about August 29, 2008. The agency shall
acknowledge to the complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant 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 complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1208)
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 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant 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. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
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. �� 1614.407 and 1614.408. 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(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 13, 2009
__________________
Date
2
0120090452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090452