01A03103_r
09-20-2001
Ronald Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald Williams v. United States Postal Service
01A03103
September 20, 2001
.
Ronald Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03103
Agency No. 4-I-630-1164-94
DECISION
Upon review, the Commission finds that the agency's February 10, 2000
decision dismissing complainant's complaint was improper pursuant
to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Complainant alleges that he was discriminated against on the basis of
disability when on August 19, 1993, he was denied reinstatement and in
1998, he was terminated. Complainant did not initiate EEO Counselor
contact until June 6, 1994.
The agency, on February 12, 1997, issued a decision dismissing the
reinstatement claim for untimely EEO Counselor contact. On September
17, 1999, the Commission issued a decision remanding the reinstatement
claim for a supplemental investigation finding that the agency did
not provide supporting documentation that complainant had actual or
constructive notice of the applicable limitation period for contacting
an EEO Counselor. Williams v. United States Postal Serv., EEOC Appeal
No. 01973397 (Sept. 17, 1999). The Commission went further to say that
the agency, if appropriate, should address complainant's arguments
justifying his untimely contact. Id. Specifically, the Commission
noted the following arguments: (1) he was not mentally or physically
capable of [contacting an EEO Counselor in a timely manner] because he was
hospitalized and being treated for mental illness and also incarcerated;
(2) he was prohibited from entering on the agency's premises, other
than to conduct business at the credit union; (3) agency inspectors
threatened him with re-incarceration; and (4) union officials advised
him not to pursue his claim. Id. The Commission also found that the
agency failed to address the termination claim. Id. The Commission
found that the agency's failure to address the termination claim was
tantamount to a dismissal. Id. The Commission reversed the dismissal
of the termination claim. Id.
The agency then issued the February 10, 2000 decision dismissing
the complaint for untimely EEO Counselor contact. The agency's
decision dismissed both the claim of being denied reinstatement and the
termination claim. Complainant appeals from that decision. In response
to the Commission's order to conduct a supplemental investigation
and in support of its February 10, 2000 decision, the agency obtained
two brief affidavits from agency employees. One affidavit was from a
counselor/investigator who states that �[t]he posters displayed in 1988
were similar to the attached poster but the time limit to contact an EEO
Counselor was 30 days instead of 45 days.� The second affidavit is from
a manager who states that s/he is �fairly certain that the EEO Posters
was (sic) displayed in the employee's swing room with time limits to
contact EEO.�
The agency failed, as part of its supplemental investigation, to address
any of the other concerns the Commission had regarding complainant's
arguments to justify extending the time limit. Even assuming, arguendo,
that the agency did prove that complainant had actual or constructive
knowledge of the time limits for contacting an EEO Counselor, the
Commission finds that the complaint is not properly dismissed for untimely
EEO Counselor contact because complainant provided a justification, which
was not rebutted by the agency, to warrant extension of the applicable
time limit.
The agency's decision dismissing the complainant is REVERSED.
The complaint is hereby REMANDED for further processing in accordance
with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
September 20, 2001
__________________
Date