01992188
11-08-1999
Sheryl A. Biglin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sheryl A. Biglin, )
Appellant, )
)
v. ) Appeal No. 01992188
) Agency No. 4-C-164-0007-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's December 30, 1998 decision
dismissing a portion of 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 after seeking EEO counseling on November 18, 1998,
appellant filed a formal complaint of discrimination alleging that she
had been discriminated against on the basis of sex when:
(1) by agency letter dated January 13, 1995, she was found medically
unsuitable for the position of Laborer-Custodian at the State College Post
Office and her name was removed from active hiring consideration; and
(2) although by subsequent agency letter dated January 31, 1995, she was
found medically suitable for the position of casual Laborer-Custodian
at the State College Post Office, she has not been called for any other
type of employment interviews; and the agency's purported failure to
contact her includes the failure to interview her for, or notify her
of clerk/carrier openings at the State College Post Office, on or about
October 28, 1998.
The agency issued a final decision accepting allegation (2) for
investigation. Allegation (1) was dismissed on the grounds of untimely
EEO counselor contact. The agency noted that appellant had not acted
with due diligence in the pursuit of her claim.
On appeal, appellant argues that she was not aware of the 45-day time
limit and that was she not aware of the necessity of contacting an EEO
counselor. Appellant also argues that she goes to the facility only to
pick up Express Mail and does not walk around the post office.
Appellant claims that she was not an employee, and therefore, was unaware
of the 45-day time limit and the EEO counselor contact requirement.
The Commission has held that EEO counselor contact by a non-federal
employee may be timely although it occurs outside the applicable time
period when the complainant is not familiar with EEO procedures and was
not informed of said procedures by the agency. Saxton v. Department
of the Army, EEOC Request No. 05901229 (January 21, 1991). We note
that the EEO counselor's report and the final agency decision indicate
that an EEO poster was on display. However, we find that this is
insufficient to support application of the constructive notice rule
to appellant as an applicant. Spell v. United States Postal Service,
EEOC Request No. 05950095 (August 24, 1995). Moreover, 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. The agency
has failed to provide independent evidence of the posting of the EEO
posters in question, i.e., affidavit by an appropriate agency official.
Accordingly, allegation (1) was improperly dismissed on the basis of
untimely EEO counselor contact and is hereby VACATED. Allegation (1)
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 allegation
(1) and will provide appellant with all relevant information concerning
her appeal rights. However, if during the course of its supplemental
investigation, the agency finds that appellant was in fact unaware of
the 45-day time limit, it shall then process allegation (1) pursuant to
the provisions of 29 C.F.R. �1614.108. A copy of the agency's letter
of acceptance 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(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. �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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations