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