01a03205
07-10-2000
Arla M. Gaines, Complainant, Aida Alvarez, Administrator, Small Business Administration, Agency.
Arla M. Gaines v. Small Business Administration
01A03205
July 10, 2000
Arla M. Gaines, )
Complainant, )
) Appeal No. 01A03205
) Agency No. 07-97-615
)
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning her
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.,<1> the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq., and �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq..<2> Accordingly, the appeal is accepted
in accordance with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
BACKGROUND
Complainant contacted an EEO Counselor on May 27, 1997, and thereafter
filed a formal complaint on July 2, 1997, claiming discrimination based
on sex (female), age (DOB: 1/10/53), physical disability (weight, asthma),
and reprisal (prior EEO activity) citing various agency actions identified
as claims (1) through (8), occurring between September 20, 1995, and
July 1997.<3> The agency issued a final decision dismissing claim (1),
occurring between September 20, 1995, and September 17, 1996, and claim
(7), occurring in January 1997, for untimely EEO counselor contact.<4>
Complainant argued among other points in her appeal that the agency failed
to post information regarding the relevant time periods for contacting
an EEO counselor and that she was unaware of the 45 day time limit.
In a decision dated May 12, 1999, the Commission remanded claims (1) and
(7) to the agency for supplemental investigation of whether complainant
had actual or constructive notice of the time limit for contcting an
EEO counselor.
The agency subsequently conducted an investigation and issued a decision
dated February 25, 2000, finding that the two EEO counselors assigned to
complainant's work site, appointed in June 1996, both stated that copy's
of EEOC's Overview Chart outlining the EEO time-frames was always posted.
The agency therefore found that complainant had constructive knowledge of
the applicable time requirements regarding counselor contact, and failed
to contact an EEO counselor within 45 days of the events she claimed to
be discriminatory.
Complainant appealed arguing that the two people interviewed were not
EEO counselors for the agency in September 1995, or the first half of
1996, which was the time period when many of the actions complained of
occurred, and therefore, could not state whether the EEOC Overview Chart
was posted during that time. She also argues that even after information
was displayed in late 1996 or 1997, the display included only pictures
and names of the EEO counselors and not the Overview Chart.
In response, the agency argues that the Personnel Management Specialist,
who has served since March 1990, with responsibility for posting relevant
EEO information, stated that she has, over the years, consistently posting
information, including EEO counselor pictures, names and phone numbers
and the EEO Overview Chart. The agency notes that a memorandum from the
former Chief, Office of Equal Employment Opportunity, dated September
4, 1995, addressed to all EEO counselors, instructed the counselors
to permanently place an enclosed EEO Overview Chart on bulletin boards
located in areas accessible to all employees.<5>
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.195(a)(1) requires that a complaint of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. EEOC Regulation 29 C.F.R. �
1614.105(a)(2) provides that the agency or the Commission shall extend
the 45-day time limit when the individual shows that he or she was not
notified of the time limits and was not otherwise aware of them.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1993) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The agency has demonstrated that the EEO Overview Chart was posted
during the relevant time periods. Therefore, the Commission finds that
complainant's claims are properly dismissed for failure to contact an
EEO counselor within 45 days of the alleged discriminatory event.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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. If you
file a request to reconsider and also file a civil action, 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
July 10, 2000
________________________ ______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage
in the administrative process. Consequently, the Commission will
apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at
WWW.EEOC.GOV.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3The agency determined that complainant contacted an EEO counselor on
November 19, 1996, because complainant filed an MSPB appeal on that date
which was subsequently dismissed for lack of jurisdiction.
4The agency dismissed claims (2) through (6) and (8) for failure to
state a claim.
5The record includes a copy of the memorandum.