Jo-Annette David, Appellant,v.Ann W. Brown, Chairman, Consumer Product Safety Commission,) Agency.

Equal Employment Opportunity CommissionJan 11, 1999
01981228 (E.E.O.C. Jan. 11, 1999)

01981228

01-11-1999

Jo-Annette David, Appellant, v. Ann W. Brown, Chairman, Consumer Product Safety Commission,) Agency.


Jo-Annette David v. Consumer Product Safety Commission

01981228

January 11, 1999

Jo-Annette David, )

Appellant, )

)

v. ) Appeal No. 01981228

)

Ann W. Brown, )

Chairman, )

Consumer Product Safety Commission,)

Agency. )

)

DECISION

The Commission finds that the agency's November 3, 1997 decision

dismissing appellant's complaint on the grounds of untimely EEO

Counselor contact, is not proper pursuant to the provisions of 29

C.F.R. �1614.107(b).

The record shows that appellant sought EEO counseling on March 6, 1997,

alleging that she had been discriminated against on the basis of her

race (African American) when she had been continuously denied training

and promotional opportunities during her twelve years of service to

the agency. Appellant further alleged that during a staff meeting held

on January 7, 1997, she was informed that no request had been made to

extend the career ladder of program analysts to GS-13.

The agency found that appellant's EEO counselor contact on March 6,

1997, was beyond the 45-day time limit provided by EEOC Regulations.

The agency further found that EEO posters with the 45-day time limit and

with the pictures, names and telephone extensions of the EEO counselors,

were posted on every floor of the agency.

On appeal, appellant contends that she was unaware of the 45-day time

limit. She also contends that the date of the discriminatory event was

January 20, 1997, because on that date she concluded that her attempts

to negotiate with management were unsuccessful<1>. The record further

shows that in her appeal appellant has raised allegations that had not

been previously raised during the EEO Counselor's inquiry of her informal

complaint.<2>

The record shows that after being informed during the January 7,

1997 meeting about the non-extension of the career ladder for program

analysts, appellant approached the Division Director with her concerns

of discrimination. She acknowledges that on January 20, 1997, she

became convinced that her attempts to negotiate had been unsuccessful.

She then sought EEO counseling on March 6, 1997, over 45 days after the

January 7, 1997 staff meeting. We have previously held that internal

appeals or informal efforts to challenge an agency's adverse action and/or

the filing of a grievance do not toll the running of the time limit to

contact an EEO counselor. See Hosford v. Department of Veterans Affairs,

EEOC Request No. 05890038 (June 9, 1989).

Nevertheless, the Commission has also consistently held that where

there is an issue of timeliness, the agency always bears the burden of

obtaining sufficient information to support a reasoned determination

as to timeliness. Williams v. Department of Defense, EEOC Request

No. 05920506 (August 25, 1992). Regarding the instant complaint, the

agency has not met this burden. The record shows that the agency has not

provided any evidence to show that appellant was, or should have been,

aware of the 45-day time limit, except for a statement in its final

decision which indicates that EEO posters, with the applicable time

limits, were on display on every floor of the agency. The agency has

failed to provide independent evidence of such posting, i.e., affidavit

by an appropriate agency official. Accordingly, the agency has failed

to provide evidence sufficient to support application of a constructive

notice rule. Pride v. USPS, EEOC Request No. 05930134 (August 19, 1993).

Accordingly, appellant's complaint was improperly dismissed on the basis

of untimely EEO counselor contact and is hereby VACATED. The complaint

is REMANDED for a supplemental investigation in accordance with this

decision and applicable regulations.

ORDER

The agency is ordered to conduct a supplemental investigation regarding

appellant's claim that she was unaware of the 45-day time limit.

Within sixty (60) days of the date this decision becomes final, the

agency shall provide affidavits from the appropriate agency officials

regarding the fact that EEO posters with applicable time limits were

posted in the agency's premises. Said affidavits will state the

exact location of the EEO posters as well as the dates in which they

were placed in the agency's premises. If during the course of the

supplemental investigation the agency finds that appellant should have

had knowledge of the applicable time limits, it shall then issue a final

decision dismissing the complaint and will provide appellant with all

relevant information concerning her appeal rights. However, if during the

course of its supplemental investigation, the agency becomes aware that

appellant was in fact unaware of the 45-day time limit, it shall then

process the complaint pursuant to the provisions of 29 C.F.R.�1614.108.

A copy of the agency's letter of acknowledgment to appellant and/or a

copy of the final agency decision 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� (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. �l6l4.604(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:

January 11, 1999

DATE Ronnie Blumenthal, Director

1 The record contains a memorandum dated January 10, 1997, in which

appellant informs the Division Director that she believed that the fact

that the career ladder for program analysts would not be extended to the

GS-13 level was "unfair to program analysts and does not provide equal

employment opportunity to all personnel who perform the same duties".

2 On her appeal, appellant claims that she was discriminated against

after she filed her formal complaint. Appellant is advised to

contact an EEO counselor regarding said new discriminatory incidents.

29 C.F.R. �1614.105(a)(1).