01A35195_r
12-18-2003
Deborah Daniels, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah Daniels v. United States Postal Service
01A35195
December 18, 2003
.
Deborah Daniels,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35195
Agency No. 4C-270-0088-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 18, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant initiated EEO Counselor contact on February 13, 2003. Informal
efforts to resolve her concerns were unsuccessful. In her formal
complaint filed on May 29, 2003, complainant alleged that she was
subjected to discrimination on the bases of race, sex, color, age,
and disability. Complainant's complaint was comprised of the following
two claims:
(1) in October 1997, she was not advised of her rights under the Family
Medical Leave Act (FMLA), which resulted in her resigning from the Postal
Service on October 17, 1997; and
(2) from August 2000 through April 29, 2002, her requests for
reinstatement have been denied.
In its final decision, the agency dismissed complainant's complaint for
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
Specifically, the agency determined that complainant initiated EEO
contact on February 13, 2003, more than 1,579 days after the alleged
discriminatory event identified in claim (1); and more than 290 days after
the alleged discriminatory event identified in claim (2). The agency
determined that complainant provided no evidence that she was not aware
of the 45-day limitation period. The agency further found that a review
of the Counselor's Report indicated that an EEO poster was on display
at complainant's workplace.
On appeal, complainant requests an extension of the 45-day limitation
period to contact an EEO Counselor because she "was not aware of, nor
was I notified, that such a time limit existed.."
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.
It is the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligations under
Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d
746 (1st Cir. 1988) ). In the instant case, the agency claimed that
EEO posters informed complainant of the time limits for contacting an
EEO Counselor.
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Serv.,
EEOC Request No. 05930134 (Aug. 19, 1993) (citing Polsby v. Shalala,
113 S. Ct. 1940 (1993)). The Commission found in Pride that the agency
had merely made a generalized affirmation that it posted EEO information.
Id. The Commission found that it could not conclude that complainant's
contact of an EEO Counselor was untimely without specific evidence that
the poster contained notice of the time limit. Id.
Although the agency relied on an EEO Counselor's Report that indicated
that EEO posters containing the time limit for contacting an EEO
Counselor were on display at complainant's workplace, the agency has
placed no evidence in the record supporting this assertion. For instance,
there is no copy of a poster in the record showing the time limit nor
is there an affidavit from any agency official stating that the poster
was indeed posted at a specified time, in a specified place, with the
appropriate time limits. There is also not sufficient evidence in the
record showing complainant had actual or constructive notice of the time
limit for contacting an EEO Counselor.
Because we determine that there is insufficient evidence of record
reflecting whether complainant was aware of the limitation period for
timely contacting an EEO Counselor, we VACATE the agency's dismissal
of the instant complaint. The complaint is REMANDED to the agency for
further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation on the issue of
whether complainant had constructive or actual notice of the time limits
for contacting an EEO Counselor. The agency shall supplement the record
with affidavit(s) and/or copies of posters showing that complainant was
informed of the time limit for contacting an EEO Counselor during the
relevant time frame.
After the agency determines whether complainant had actual or constructive
notice of the time limit for contacting an EEO Counselor and whether
she acted in a timely manner once she obtained actual or constructive
knowledge, the agency shall, within 30 days after the date that this
decision becomes final, issue a new final agency decision dismissing
the complaint or issue an acceptance letter.
A copy of the new final agency decision or letter accepting the complaint
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
December 18, 2003
__________________
Date