01985678
02-24-2000
Elizabeth Baase, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Elizabeth Baase, )
Complainant, )
)
v. ) Appeal No. 01985678
Louis Caldera, ) Agency No. RXOF97-046
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On June 27, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on June 11, 1998,
pertaining to 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> In her complaint, complainant alleged that
she was subjected to discrimination on the basis of sex (female) when:
From June through December 1996, complainant was allegedly sexually
harassed by an agency manager.
In an August 29, 1997 final agency decision (FAD 1), the agency dismissed
complainant's complaint, on the grounds of untimely EEO Counselor contact.
In EEOC Appeal No. 01977077 (May 20, 1998), the Commission ordered a
supplemental investigation to determine whether complainant had been
informed of the time limits for making EEO Counselor contact. Following
the supplemental investigation, the agency issued a new final decision
(FAD 2), in which it dismissed complainant's complaint on the grounds
of untimely EEO Counselor contact. Specifically, the agency found that
complainant had been aware of the forty-five-day time limit for contacting
an EEO Counselor. In its supplemental investigative report, the agency
stated that a bulletin board outside the Personnel Office contained
information related to filing discrimination complaints and included
details on the applicable time limit. In addition, the agency stated
that complainant attended a four-hour instructional class pertaining
to discrimination, in which she was advised of the forty-five-day time
limit for contacting an EEO Counselor.
The record contains a document which appears to be a poster regarding
the agency's Nondiscrimination Employment Policy. We note, however,
that the poster does not mention the forty-five-day time limit for
initiating EEO contact. In addition, the record contains a copy
of a training attendance and rating (AF Form 1151) form which shows
complainant attended an instructional class on August 2, 1996, titled
Equal Opportunity Awareness. In the supplemental investigation, the EEO
Specialist states, without any independent corroboration that the time
limit for contacting an EEO counselor was discussed during the August 2,
1996 class.
On appeal, however, complainant states that although she attended a
social actions course on discrimination, the class failed to mention the
forty-five-day time limit for contacting an EEO Counselor. Complainant
also states that during her January 1997 visit with Personnel, the Chief
of Personnel failed to inform her of the time limit for contacting
an EEO Counselor. In addition, complainant claims that the bulletin
board outside the personnel office did not mention the applicable time
limitation.
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 of the rights
and obligations under Title VII will be imputed to a complainant where
the agency has fulfilled its statutory duty of conspicuously posting
EEO posters informing employees of their rights. See Piccone v. United
States Postal Service, EEOC Request No. 05950678 (April 11, 1996), citing,
Brown v. Department of Commerce, EEOC Request No. 05890978 (January
10, 1990). However, the agency has the burden of producing sufficient
evidence to support its contention that it fulfilled its statutory
duty of conspicuously posting EEO information or that it otherwise
notified complainant of her rights. In addition, the Commission has
found that constructive knowledge will not be imputed to a complainant
without specific evidence that the posters contained notice of the time
limitations for contacting an EEO Counselor. See Piccone citing Pride
v. United States Postal Service, EEOC Request No. 05930134 (August 19,
1993).
In the present case, we find that the agency failed to provide sufficient
evidence to support the contention that complainant had constructive
knowledge of the time limits for contacting an EEO Counselor. Although
the agency provided a copy of the EEO poster which was purportedly on
display at the personnel office, it does not contain information about
the forty-five-day time limitation for contacting an EEO Counselor.
Furthermore, the agency provided the training attendance sheet signed
by complainant, indicating complainant did attend the social action
course offered by the agency; however, the agency failed to produce
sufficient evidence that the forty-five-day time limit for contacting
an EEO Counselor was discussed. Thus, we find that the agency failed
to prove that complainant had constructive knowledge of the applicable
time limit.
Accordingly, the agency improperly dismissed complainant's complaint and
the agency decision is REVERSED and REMANDED for further processing in
accordance with the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 24, 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 Equal Employment Assistant1On 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.