01a32216_r
08-07-2003
Peter W. MacLauchlin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peter W. MacLauchlin v. United States Postal Service
01A32216
August 7, 2003
.
Peter W. MacLauchlin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32216
Agency No. 4F-920-0052-02
DECISION
Upon review, the Commission finds that the agency's decision dated
January 9, 2003, dismissing complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaint, complainant alleged that on May 25, 2001, he was
terminated from his part-time flexible probationary letter carrier
position at the Palm Desert Post Office. Complainant contacted an EEO
Counselor with regard to his complaint on November 6, 2001, which was
beyond the 45-day time limit set by the regulations. On April 17, 2002,
the agency, previously, issued its decision dismissing the complaint due
to untimely EEO Counselor contact. Complainant appealed that decision,
and the Commission, in EEOC Appeal No. 01A23082 (September 5, 2002),
previously, vacated and remanded the subject matter. Specifically,
the Commission stated that although the record indicated that an EEO
post was hanging on October 6, 2000, it did not indicate whether the
poster was hanging at the time of the alleged termination.
In accordance with the Commission's previous order, the agency submitted,
in the record, an affidavit of an agency managerial official who verified
that the EEO poster, including the 45-day time limit to contact an EEO
Counselor, was placed on two different information boards at the Palm
Desert Post Office at the time of the alleged termination. The Commission
has held that constructive knowledge will be imputed to an employee when
an employer has fulfilled its obligation of informing employees of their
rights and obligations under Title VII. Thompson v. Department of the
Army, EEOC Request 05910474 (September 12, 1991). Thus, the Commission
finds that complainant had constructive notice of the requisite time limit
to contact an EEO Counselor in a timely manner. Furthermore, the agency,
in its decision, stated that complainant knew about EEO complaint process
since he was identified as a witness to his coworker's EEO complaint,
and that coworker, who was also terminated during probation, made an
EEO Counselor contact on May 23, 2001. On appeal, complainant does not
dispute the agency's foregoing contentions. Thus, the Commission finds
that complainant has failed to present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 7, 2003
__________________
Date