Sheryl A. Biglin, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01992188 (E.E.O.C. Nov. 8, 1999)

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