Arla M. Gaines, Complainant, Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
01a03205 (E.E.O.C. Jul. 10, 2000)

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.