01a02312
05-30-2000
Diane Auriemma, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Diane Auriemma v. United States Postal Service
01A02312
May 30, 2000
Diane Auriemma, )
Complainant, )
)
)
v. ) Appeal No. 01A02312
) Agency No. 4A-110-0142-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant appealed from the agency's decision dated October 29,
1999, dismissing her complaint due to untimely EEO contact, pursuant to
the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)).<1>
In the complaint, complainant alleged that while she was a Carrier
Supervisor at the Middle Village Station, the Station Manager never
gave her paperwork or instructions related to her position, whereas her
successor was allowed to be more involved with the carrier operation.
Complainant alleged that she relinquished her supervisory position in
October 1997, but in November 1998, she noticed that her successor was
given more responsibilities working with the carriers than she was.
The record contains the EEO Counselor's Report, wherein, complainant
indicated that she had no knowledge of the EEO process. Therein, the
EEO Counselor indicated that on July 20, 1999, he went to the Middle
Village Station, and noticed that there was no EEO poster posted, and
he, then, posted an EEO poster in the swing room and by the time clock.
The agency, in its decision, stated that complainant's May 17, 1999 EEO
contact with regard to the matter was beyond the 45-day time limit.
The Commission has held 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 05910474 (September 12, 1991).
In the instant case, the agency failed to submit any evidence to show
that complainant was provided with this notice, including the requisite
time limit to contact an EEO Counselor, at the time and in the place of
the alleged incident. Absent this evidence, we find that the record is
insufficient to determine the timeliness of complainant's EEO contact.
Accordingly, the agency's decision to dismiss complainant's complaint
due to untimely EEO contact is VACATED. The complaint is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to investigate the issue of whether at the
time of the alleged incident, i.e., in or around November 1998, when
complainant noticed that her successor was given more responsibilities
than she was while she was in her supervisory position in October
1997, the agency posted EEO information on display at the Middle
Village Station, or in some other manner provided EEO information to
complainant, that specifically referred to the time limit for contacting
an EEO Counselor. The agency shall gather any other evidence necessary
to determine when complainant learned of the time limit for contacting
an EEO Counselor, including, but not limited to, statements from agency
officials, who were aware of the posting of EEO information at the
time of the alleged incident. Within thirty (30) calendar days of the
date this decision becomes final, the agency shall issue a new final
decision or notice of processing after it determines whether complainant
had actual or constructive notice of the time limit for contacting an
EEO Counselor or acted in a timely manner once she obtained actual or
constructive knowledge.
A copy of the new final agency decision or notice of processing must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (R0400)
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:
May 30, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On 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.