01987087
09-10-1999
Robert M. Purtell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert M. Purtell v. United States Postal Service
01987087
September 10, 1999
Robert M. Purtell, )
Appellant, )
)
v. )
) Appeal No. 01987087
William J. Henderson, ) Agency No. 4A-105-0090-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 30, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD), dated August 31, 1998,
dismissing his complaint for untimely counselor contact. The Commission
accepts appellant's appeal in accordance with EEOC Order No. 960, as
amended.
On April 23, 1998, appellant contacted the EEO office regarding
allegations of discrimination based on mental disability (bi-polar
disorder). Informal efforts to resolve appellant's concerns were
unsuccessful. Accordingly, appellant filed a formal complaint on June
9, 1998. The agency defined the allegations as follows:
1) On December 26, 1997, appellant was suspended;
On December 31, 1997 appellant was told to report to be interviewed by
Postal Inspectors;
On January 28, 1998 appellant was issued a Notice of Removal, effective
February 27, 1998, charging him with improper conduct.
The agency dismissed appellant's complaint pursuant to 29
C.F.R. �1614.107(b). The FAD determined that the forty-five (45) day
time limitation for contacting a counselor began on February 27, 1998,
the effective date of the most recent disciplinary action, and therefore
appellant's contact was untimely.
On appeal, appellant contends that he was unaware of his right to file
an EEO complaint based on his disability, until April 23, 1998. At that
time, appellant noticed the Postmaster's EEO policy.
In response, the agency submits affidavits from the Manager of Customer
Service and an EEO Counselor/Investigator. The manager attests that
an EEO poster (#72) has been on display on the bulletin board outside
the postmaster's office, on the workroom floor "well before [appellant]
filed his complaint". The EEO Counselor attests to seeing the poster in
the lobby and on the workroom floor. A copy of the described poster,
which includes notification of the forty-five (45) day time limit,
was also provided by the agency.
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.
Based on a review of the record, the Commission finds that the appellant
had constructive knowledge of the time limitation for EEO counselor
contact. See Santiago v. U.S. Postal Service, EEOC Request No. 05950272
(July 6, 1995). The agency has provided sufficient evidence showing that
an EEO poster with applicable time limits, was present at appellant's
work location. Therefore, the Commission finds that the agency properly
dismissed the complaint for untimely EEO counselor contact pursuant to 29
C.F.R. �1614.107(b).
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:
September 10, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations