01990298
10-07-1999
Kenneth O. Womack, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth O. Womack, Jr., )
Appellant, )
)
v. )
) Appeal No. 01990298
William J. Henderson, ) Agency No.4-C-190-0080-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 9, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 23, 1998, dismissing
his complaint for untimely counselor contact. Accordingly, the Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
On January 5, 1998 appellant contacted the EEO office regarding
allegations of discrimination based on mental disability (right anterior
lobectomy). Informal efforts to resolve appellant's concerns were
unsuccessful. Accordingly, on May 5, 1998, appellant filed a formal
complaint alleging he was discriminated against when: on October 14,
1997 he became aware that he was not hired for the position of custodian.
The agency dismissed appellant's complaint for untimely counselor contact,
pursuant to 29 C.F.R. �1614.107(b). The FAD stated that appellant's
January 5, 1998 counselor contact was eighty-three (83) days after the
alleged discriminatory event, and therefore beyond the forty-five (45)
day time limitation.
On appeal, appellant, through his attorney, contends that appellant
was not informed by the Human Resources office of the time limit for
contacting an EEO counselor. Appellant contacted the Human Resources
office, after they sent him a letter stating that he would not be
considered for a custodian position, to request that they reconsider
the matter. Appellant's attorney argues that appellant then waited for
a promised letter that never arrived.
In response, the agency contends that appellant was aware of EEO
procedures and the forty-five (45) day time limitation for contacting
a counselor. The agency noted that although appellant never filed a
formal complaint, he requested counseling on September 21, 1994 and was
given a Right to File Individual Complaint form. Further, the agency
submits an affidavit from the Manager of Distribution Operations.
She attests to the location and content of several EEO posters during
the relevant time frame.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should 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.
In order to commence the running of the forty-five (45) day limitations
period for requesting EEO counseling, the complainant must have either
actual or constructive knowledge of the time limit. See York v. Dept. of
Veterans Affairs, EEOC Request No. 05940575 (Nov. 2, 1994). It is
the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligations under
EEOC Regulations for publicizing the time limits for contacting an
EEO Counselor. See Starr v. Dept. of Veterans Affairs, EEOC Request
No. 05950455 (Sept. 28, 1995) (citing Thompson v. Dept. of the Army,
EEOC Request No. 05910474.
In the instant case, appellant contends that he was unaware of the time
limit for contacting an EEO counselor. We find, however, that appellant
had constructive knowledge of the time limit. See Santiago v. U.S. Postal
Service, EEOC Request No. 05950272 (July 6, 1995). The agency provided
sufficient evidence, showing that an EEO poster was present at appellant's
work location and that appellant was or should have been familiar with
the EEO process. Therefore, the Commission finds that the agency properly
dismissed the complaint for untimely counselor contact.
Accordingly, the agency's decision dismissing the 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:
October 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations