Ritav.Kaniecki, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01981230 (E.E.O.C. Jan. 28, 1999)

01981230

01-28-1999

Rita V. Kaniecki, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rita V. Kaniecki v. United States Postal Service

01981230

January 28, 1999

Rita V. Kaniecki, )

Appellant, )

)

v. ) Appeal No. 01981230

) Agency No. 4K-210-0090-97

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., the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The final agency decision was received

by appellant on November 8, 1997. The appeal was postmarked November

21, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint as untimely.

BACKGROUND

Appellant contacted an EEO counselor on March 14, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that

she was discriminated against when (1) on January 6, 1997 she was not

considered for detail assignments; (2) on February 12, 1997 she was

notified that her request for a lateral transfer had been denied; and (3)

on March 21, 1997 she was notified that the position of Postmaster/Baldwin

had been filled and that she had not been interviewed for the position.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on August 1, 1997, appellant filed a formal complaint

alleging that she was the victim of unlawful employment discrimination on

the bases of disability (hearing and sight impairments), sex (female),

and age (12-14-42).

On October 24, 1997, the agency issued a final decision accepting

allegations (2) and (3) for investigation but dismissing allegation (1)

for failure to timely initiate EEO contact. Specifically, the agency

determined that appellant's March 14, 1997 counselor contact concerning

an alleged discriminatory event on January 6, 1997 was beyond the time

limits provided in Part 1614 of the EEOC Regulations. The agency further

found that an EEO poster regarding time limits for counselor contact

was displayed at appellant's worksite.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1), requires that an aggrieved

person must initiate contact with an EEO 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.

In the instant case, appellant's EEO contact on March 14, 1997 was

67 days beyond the date of the matter alleged to be discriminatory,

January 6, 1997. The FAD dismissed allegation (1) as untimely pursuant

to 29 C.F.R. �1614.105(a)(1) and indicated that EEO posters containing

time frames for counselor contact were appropriately displayed.

It is the Commission's policy that constructive knowledge will be

imputed to an employee when an employer has fulfilled its obligation

under EEOC regulations for publicizing the time limits for contacting an

EEO Counselor. See Starr v. Department of Veterans Affairs, EEOC Request

No. 05950455 (Sept. 2, 1995)(citing Thompson v. Department of the Army,

EEOC Request No. 05910474 (Sept. 12, 1991). The Commission requires,

however, that an agency provide independent evidence of record�as

opposed to a mere generalized statement�that it posted EEO information

containing the relevant time limits for contacting an EEO Counselor.

Kovarik v. Department of Defense (Army and Air Force Exchange Service),

EEOC Request No. 05930898 (December 9, 1993). The agency provides such

independent evidence in the form of an affidavit signed by appellant on

October 10, 1997 in which she acknowledges that an EEO poster containing

relevant time frames for EEO contact has been displayed on an employee

bulletin board for the past five years.

Upon review of the record herein, the Commission concludes that

appellant had constructive knowledge of the forty-five (45) day time

limitation for contacting an EEO counselor and failed to comply with 29

C.F.R. �1614.105(a)(1). The Commission further finds that appellant

has failed to show that the forty-five (45) day time limit should

be extended for any reason. In this regard, we are not persuaded by

appellant's assertion on appeal that she was not aware that she had

been discriminated against on January 6, 1997, until she learned on

March 21, 1997 that the Postmaster/Baldwin position had been filled.

Rather, we find that the alleged discriminatory event on January 6,

1997 was in the nature of an isolated employment decision which had a

degree of permanence which would should have triggered appellant's duty

to assert her rights. See Woljan v. Environmental Protection Agency,

EEOC Request No. 05950361 (October 5, 1995).

CONCLUSION

Accordingly, the agency's decision dismissing a portion of appellant's

complaint as untimely is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

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 (S0993)

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. 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. If you file a request to reconsider and also file a

civil action, 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 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations