Robert E. Farris, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region) Agency.

Equal Employment Opportunity CommissionApr 1, 1999
01982354 (E.E.O.C. Apr. 1, 1999)

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).