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).