Mary C. Ross, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01986677_r (E.E.O.C. Sep. 3, 1999)

01986677_r

09-03-1999

Mary C. Ross, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mary C. Ross, )

Appellant, )

)

)

v. ) Appeal No. 01986677

) Agency No. 4E-852-0035-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On September 2, 1998, appellant filed a timely appeal of a final agency

decision, which was received by appellant on August 5, 1998, dismissing

her complaint, pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO

Counselor contact.

In its final decision, the agency identified the allegation of appellant's

June 16, 1998 complaint as whether appellant was discriminated against

when she was not given a transitional employee position. The agency

stated that the alleged incident occurred on March 19, 1997, but

appellant did not contact an EEO Counselor until November 14, 1997,

which was beyond the 45-day time limit set by the regulations.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

Appellant maintains that she was not aware or informed of the 45-day

time limit to timely contact an EEO Counselor at the time of the alleged

incident. The agency stated in the final decision that an EEO poster,

including the 45-day time frame, was on display at the facility where

appellant worked. 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). 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). On appeal, appellant contends that the EEO poster, which was

purportedly posted at appellant's workplace, was not on display at the

time of the alleged incident. While the agency submitted a copy of an EEO

notice, including the 45-day time limit, which was purportedly posted at

appellant's workplace, there is no evidence in the record to show whether

such notice was posted at the time of the alleged discriminatory incident.

Absent this evidence, we find that the record is insufficient to determine

the timeliness of appellant's EEO contact.

Accordingly, the agency's final decision is hereby 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 discriminatory incident, the agency posted EEO

information on display, or in some other manner provided EEO information

to appellant, that specifically referred to the time limit for contacting

an EEO Counselor. The agency shall gather any other evidence necessary

to determine when appellant learned of the time limit for contacting an

EEO Counselor, including, but not limited to, statements from agency

officials/employees, who were aware of the posting of EEO information

at the time of the alleged discriminatory 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 appellant 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 (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:

Sept. 3, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations