01983520_r
06-18-1999
Jacqueline Thomas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jacqueline Thomas, )
Appellant, )
)
v. ) Appeal No. 01983520
) Agency No. 4C-440-0002-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The final decision was
issued on December 30, 1997. The appeal was postmarked March
29, 1998. Accordingly, the appeal is considered timely<1> (see 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
The record reflects that appellant, an agency Postal Carrier, sustained an
injury on February 3, 1994, when the agency vehicle she was driving was
struck by another vehicle. The record further reflects that on July 19,
1995, a District Office of the Department of Labor's Office of Workers'
Compensation Programs (OWCP)denied appellant's claim for compensation
on the grounds that the medical evidence of record did not establish
that appellant had any medical condition related to the February 3,
1994 accident. Appellant disagreed with that decision and made a
request for a hearing before a representative of the OWCP. Following a
hearing, OWCP modified the decision of July 19, 1995, and found that
appellant suffered a mild musculo-skeletal strain due to the accident.
The remainder of the July 19, 1995 decision was affirmed.
By letter dated June 13, 1997, an agency Postal Inspector informed
appellant that he was responding to appellant's allegation of misconduct
involving the USPS Injury Compensation Unit (ICU). The Postal
Inspector noted that �during our telephone conversation of March 31,
1997, [appellant] alleged a representative from ICU intercepted your
mail to obtain the medical information mailed to you by your doctor in
early 1995.�
On August 5, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. On November
18, 1997, appellant filed a formal complaint, alleging that she was
the victim of unlawful employment discrimination on the bases of race,
color, sex, and disability. The record contains a statement prepared by
appellant on November 18, 1997, articulating some of the matters raised
in her formal complaint. Therein, appellant made the following statement:
The issue is that around 8/5/97, I became aware through conversation with
someone else, and accident related forms and paperwork, that I received
different treatment with my IOD claim which resulted in difference in
treatment, from my 2/3/94 Motor Vehicle Accident.
On December 30, 1997, the agency issued a final decision. Therein, the
agency found that appellant's complaint was comprised of four allegations,
that were identified in the following fashion:
1. On an unspecified date in July 1995, her injury claim was denied.
2. Since August 5, 1995, she has been denied work.
3. On June 28, 1997, she became aware via a Postal Inspection letter
dated June 13, 1997, that she was treated differently by the Injury
Compensation Unit regarding correspondence inappropriately obtained by
the agency for complainant's injury file.
4. On August 5, 1997, she became aware that she received different
treatment with her IOD claim for a February 1994 vehicle accident,
causing complainant's claim to not be accepted by the Department of Labor.
The agency dismissed all four allegations for failure to initiate timely
contact with an EEO Counselor. The agency determined that appellant's
initial EEO Counselor contact on August 5, 1997, was approximately
twelve to thirteen months after the matters addressed in allegations 1
and 2 purportedly occurred. Regarding allegations 3 and 4, the agency
states that the June 13, 1997 Postal Inspection letter addressed in
this allegation makes reference to a telephone conversation between
appellant and an agency official on March 31, 1997, wherein appellant
purportedly stated that in early 1995, the agency intercepted her mail
to obtain medical information mailed to appellant by her physician.
The agency stated that the June 13, 1997 letter contains information
reflecting that appellant had a reasonable suspicion of unlawful
employment discrimination as early as March 31, 1997, regarding the
matters set forth in allegations 3 and 4. A copy of the June 13, 1997
letter cited by the agency is not contained in the record. The agency
also stated that appellant was aware, or should have been aware, of the
limitation period for timely contacting an EEO Counselor. The agency
noted that appellant had prior EEO activity, and that posters are on
display at the facility where appellant was employed.
On appeal, appellant argues that her complaint was improperly dismissed
for failure to timely contact an EEO Counselor. Appellant states that
she is no longer employed by the agency and cannot, therefore, attest to
whether a poster is on display at the facility where she was employed.
Appellant argues, however, that no posters were on display when she was
an agency employee. Appellant acknowledges that she pursued the EEO
complaint process in June 1995. Appellant argues, however, that she
was unaware of the forty-five day limitation period at that time.
Moreover, regarding allegation 3, appellant acknowledges that she
contacted a Postal Inspector regarding allegations of �criminal
misconduct,� but that she only developed a reasonable suspicion of
unlawful employment discrimination when she received a Postal Inspection
letter dated June 13, 1997. Appellant argues that the letter dated June
13, 1997 �verified that the agency had no record of how they obtained
the medical information in question . . .� Regarding allegation 4,
appellant argues that as a result of conversations, accident related
forms, and paperwork that addressed �regulations, procedures, and policy�
she developed a reasonable suspicion of unlawful employment discrimination
on August 5, 1997.
In response, the agency argues that appellant's complaint was properly
dismissed for the reasons set forth in its final decision.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
On appeal, appellant argues that she was unaware of the limitation
period for initiating timely EEO Counselor contact. Specifically,
appellant argues that no posters were on display at the facility where
she was employed, apprizing her of the necessity for timely contacting
an EEO Counselor. Appellant further argues that although she filed an
EEO complaint in 1995, she was not made aware of the limitation period at
that time. 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 05910474 (September 12,
1991). However, the Commission has held that a generalized affirmation
that an agency posted EEO information, without specific evidence that
the poster contained notice of the time limits, is insufficient for
constructive knowledge of the time limits for EEO Counselor contact.
Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993). We are
unable to ascertain from the record before us whether appellant had been
informed of the necessity for initiating timely EEO Counselor contact
at the time that the incidents of alleged discrimination raised in her
complaint purportedly occurred.
Moreover, we note that appellant argues on appeal that she was not aware
that she was the victim of unlawful employment discrimination at the time
the alleged incidents of discrimination occurred. We note, for example,
that in regard to allegation 3, appellant argues that she only developed a
reasonable suspicion of unlawful employment discrimination after receiving
a Postal Inspection letter dated June 13, 1997; and that in regard to
allegation 4 she only developed a reasonable suspicion on August 5, 1997,
following various �conversations, accident related forms, and paperwork .
.� We find, however, that there is insufficient evidence in the record
for us to determine when appellant developed a suspicion that she was
the victim of unlawful employment discrimination.
Because we are unable to determine whether appellant had been informed
of the necessity of initiating timely EEO Counselor contact, and
because we are unable to determine when appellant developed a reasonable
suspicion that she was the victim of unlawful employment discrimination,
the agency's decision dismissing appellant's complaint is VACATED.
Appellant's 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:
1. The agency is ORDERED to conduct a supplemental investigation to
ascertain whether and when appellant had been informed of the necessity
for initiating timely contact with an EEO Counselor and the applicable
time limit.
2. The agency is further ORDERED to provide appellant with the
opportunity to submit information regarding the circumstances which
caused her to develop a reasonable suspicion about the matters addressed
in allegations 1 - 4. This information shall include the exact dates
that appellant developed a reasonable suspicion; the information that
she received that caused her to believe that she was the victim of
discrimination; the manner in which she received the information;
and how the information triggered a suspicion of unlawful employment
discrimination.
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency shall notify appellant that she has fifteen (15)
calendar days from the date of her receipt of the agency's notification
to provide the requested information. The agency shall have fifteen
(15) calendar days from the date of its receipt of appellant's response
to issue a final agency decision or to notify appellant that the agency
is processing her allegations.
A copy of the new final agency decision and/or a copy of the notice of
processing must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil action, the administrative
processing of the complaint, including any petition for enforcement,
will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 18, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
1 The dismissal of a complaint or a portion of a complaint may
be appealed to the Commission within thirty (30) calendar days of
the date of the complainant's receipt of the dismissal or final
decision. See 29 C.F.R. �1614.402(a). Because the agency failed
on appeal to supply a copy of the certified mail receipt or any
other material capable of establishing that date, the Commission
presumes that the appeal was filed within thirty (30) calendar
days of the date of appellant's receipt of the final decision.