0120082797
12-23-2008
William C. Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William C. Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082797
Agency No. 4C-080-0031-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dismissing his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
On January 18, 2008, complainant initiated contact with an EEO Counselor
alleging that he was discriminated against on the basis of disability.
Informal efforts to resolve complainant's concerns were unsuccessful.
On April 29, 2008, complainant filed a formal complaint.
In its final decision dated May 8, 2008, the agency determined that
complainant's complaint was comprised of the following claims:
1. on or about September 4, 2007, complainant was told not to use any
more sick leave; and
2. on October 19, 2007, complainant was issued a Letter of Warning.
In its final agency decision (FAD), the agency dismissed the instant
formal complaint on the grounds of untimely EEO counselor contact.
The agency noted that complainant was, or should have been, aware of
the time limits since EEO posters were on display in complainant's work
facility.
On appeal, complainant contends that he was unaware of his EEO rights.
Complainant further asserted that the EEO poster referred by the agency
in its final decision was posted in an inaccessible location; and that he
and his coworkers were unaware of its location until after complainant
received the FAD in this case. Specifically, complainant stated he
discovered that the EEO poster was posted in a location in the hallway
of the loading dock where he had no occasion to stop, because stopping in
this area puts employees in danger of being hit by moving BMC containers,
carts, cages, and "knockers" of mail coming in and out of the facility.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
While the record contains a declaration of a manager stating that an
EEO poster was located in a "lock[ed] glass cabinet door next to the
employee's bulleting [sic] board," there is no evidence in the record
establishing that it was posted in a conspicuous location. Complainant
has not alleged that the EEO poster did not exist but that it was not
conspicuously posted; rather, it was posted in an inaccessible/dangerous
place in the loading dock hallway. In addition, we note that complainant
stated that, prior to receiving the FAD in this case, he had not seen
such poster and was unaware of its location. The agency has presented
no evidence, aside from its assertion, to show that the EEO poster was
prominently displayed at complainant's work facility. It is noted that
the Commission has found that a showing by a complainant that EEO posters
were inaccessible or otherwise inadequate may be sufficient to support
a claim that the individual lacked knowledge of the limitation period.
See Yashuk v. United States Postal Service, EEOC Request No. 05890382
(June 2, 1989).
We also have found that where, as in here, there is an issue
of timeliness, an "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 light of the foregoing, we find that waiver of
the applicable time limit is justified in this case, and find dismissal
of complainant's complaint for untimely EEO Counselor contact improper
because the agency has failed to prove that complainant had actual
or constructive notice of the time limit. Accordingly, the agency's
decision is REVERSED. Complainant's complaint is hereby REMANDED to
the agency for further processing in accordance with this decision and
the applicable regulations.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 23, 2008
Date
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0120082797
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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