01982354
04-01-1999
Robert E. Farris, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region) Agency.
Robert E. Farris, Jr. v. United States Postal Service
01982354
April 1, 1999
Robert E. Farris, Jr., )
Appellant, )
)
v. ) Appeal No. 01982354
) Agency No. 4H-370-0248-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region) )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. Appellant alleged that
he was discriminated against on the bases of sex (male) and physical
disability (back) when he was issued a Notice of Removal effective April
5, 1997. In its FAD, the agency dismissed the complaint pursuant to 29
C.F.R. � 1614.107(b) for failure to initiate timely EEO contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO 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. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Posadas v. Department of the Army, EEOC Request
No. 05980290 (June 25, 1998). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations 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. See 29 C.F.R. � 1614.105(a)(2).
In its FAD, the agency found that appellant contacted an EEO counselor
on August 26, 1997, concerning his Notice of Removal, effective April
5, 1997.<1> In order to comply with the applicable time limitations
contained in 29 C.F.R. � 1614.105(a)(1), appellant should have contacted
an EEO counselor by May 20, 1997. On appeal, appellant states that
although he had worked for the agency for ten (10) years, he was unaware
of the proper procedures for filing a complaint.
In its FAD, the agency did not address the issue of whether appellant
was aware of the proper procedures for filing a complaint. It is
the Commission's policy that constructive notice will be imputed to an
employee when an employer has fulfilled its obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991). However, it is well-settled that 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." Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). In the instant case, the agency has
not submitted specific evidence to support a finding that appellant had
actual or constructive knowledge of the applicable time limits for filing
a complaint. We are therefore unable to ascertain whether the appellant
was informed of the necessity of initiating timely contact with an EEO
counselor.
Accordingly, we VACATE the FAD and REMAND the allegation to the agency
in accordance with this decision and the ORDER below.
ORDER
The agency shall conduct a supplemental investigation to ascertain
whether appellant was informed of the necessity for initiating contact
with an EEO counselor and the time limits for doing so, and when and
how appellant was so informed. Thereafter, the agency shall issue a
final agency decision or notify appellant that the agency is processing
his complaint. The supplemental investigation and issuance of the final
agency decision or notice of processing must be completed within thirty
(30) calendar days of the date this decision becomes final. A copy of
the agency's new final decision or notice of processing must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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.F.R.). 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:
April 1, 1999
________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that there is evidence in the record to establish
that appellant filed a mixed case appeal with the Merit Systems Protection
Board (MSPB) on August 26, 1997, which appeal, being erroneously deemed
a premature request for review of a mixed case complaint, was dismissed
by the MSPB for lack of jurisdiction. EEOC Regulation 29 C.F.R. �
1614.302(b) states that if a person files a mixed case appeal with
the MSPB instead of a mixed case complaint, and the MSPB dismisses the
appeal for jurisdictional reasons, the agency shall promptly notify the
individual in writing of the right to contact an EEO counselor within
forty five (45) days of receipt of the notice, subject to 29 C.F.R. �
1614.107. The date on which the person filed his appeal with the MSPB
shall be deemed to be the date of initial contact with the counselor.
In the instant case, the agency failed to promptly notify appellant
of his right to contact an EEO counselor, but the error is found to be
harmless since the date on which appellant filed his MSPB appeal is the
very same date which the agency has determined to be the date of initial
EEO contact.
The Commission has no authority to make jurisdictional decisions
for the MSPB. Wade v. Department of the Air Force, EEOC Request
No. 05930564 (March 31, 1994). However, we take note of the agency's
contention that appellant lacked standing to file a mixed case appeal
because he was not a "preference eligible" employee. 5 U.S.C. �
2108(3). The agency argued that to be "preference eligible," appellant
must prove that he was a veteran within the meaning of 5 U.S.C. �
2108(1)(A). Appellant's DD-214 Form does not support a finding that,
while in the armed forces, he served in a campaign or expedition for
which a campaign badge was authorized. See Perez v. Merit Systems
Protection Board, 85 F.3d 591 (Fed. Cir. 1996).
We also note that the record establishes that appellant filed a grievance
pursuant to his collective bargaining agreement, which grievance was
ultimately denied by an arbitrator. The grievance proceeding has no
relevance to the instant complaint of discrimination. See 29 C.F.R. �
1614.301(c).