Anna Shannon, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 12, 1999
01982175 (E.E.O.C. Feb. 12, 1999)

01982175

02-12-1999

Anna Shannon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Anna Shannon v. United States Postal Service

01982175

February 12, 1999

Anna Shannon, )

Appellant, )

)

v. ) Appeal No. 01982175

) Agency No. 1-G-771-0158-97

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. Appellant received the final agency decision

on December 26, 1997. The appeal was postmarked January 20, 1998.

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 appellant's

complaint on the grounds that appellant failed to contact an EEO Counselor

in a timely manner.

BACKGROUND

Appellant initiated contact with an EEO Counselor on July 4, 1997. In a

formal EEO complaint dated October 7, 1997, appellant alleged that she

had been discriminated against on the basis of her sex (female) when in

January 1995, a male employee reached out and grabbed her left breast. The

EEO Counselor's report states that when appellant was asked why she took

so long to initiate her complaint, appellant stated that she was unaware

of the 45-day limitation period for contacting an EEO Counselor.

In its final decision, the agency dismissed appellant's complaint on the

grounds of failure to contact an EEO Counselor in a timely manner. The

agency determined that appellant's EEO contact was after the expiration

of the 45-day limitation period. According to the agency, EEO posters

which provide information concerning the appropriate official to contact

regarding EEO matters, as well as the prescribed time limits were and are

prominently displayed in appellant's work facility. The agency concluded

that appellant failed to exercise due diligence or prudent regard for

her rights. Thereafter, appellant submitted the instant appeal.

ANALYSIS AND FINDINGS

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

discrimination should be brought to the attention of the Equal Employment

Opportunity 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 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the

Commission shall extend the 45-day time limit when the individual shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

It is the Commission's policy 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 No. 05910474 (September

12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746

(1st Cir. 1988).

The Commission has held that information in an EEO Counselor's report

regarding posting of EEO information was inadequate to support application

of a constructive notice rule. Pride v. United States Postal Service,

EEOC Request No. 05930134 (August 19, 1993). The Commission found in

Pride that the agency had merely made a generalized affirmation that

it posted EEO information. Id. The Commission found that it could not

conclude that appellant's contact of an EEO Counselor was untimely without

specific evidence that the poster contained notice of the time limit.

Id.

Appellant alleged that she was discriminated against when in January 1995,

a male coworker reached out and grabbed her left breast. Appellant did

not initiate contact with an EEO Counselor until July 4, 1997. However,

we note that the EEO Counselor's report indicates that appellant claimed

she was unaware of the 45-day limitation period for contacting an EEO

Counselor. Beyond the self-serving statement in the final decision,

the agency failed to present any evidence to show that appellant was

informed or aware of the applicable time limit, or otherwise refute

appellant's contention that she lacked knowledge of the applicable

limitation period for contacting an EEO Counselor. Accordingly, the

agency's decision to dismiss appellant's complaint on the grounds of

untimely contact is VACATED. This complaint is hereby REMANDED for

further processing pursuant to the ORDER below.

ORDER

The agency is ORDERED to conduct a supplemental investigation which

shall include the following actions:

The agency is ORDERED to conduct a supplemental investigation with regard

to the issue of when appellant had actual or constructive notice of the

time limit for contacting an EEO Counselor. The agency shall gather any

evidence necessary to show whether and when appellant had actual knowledge

or was put on constructive notice of the time limit for contacting an EEO

Counselor. The agency shall make a determination as to whether appellant

contacted an EEO Counselor in a timely manner after she had actual or

constructive notice of the time limit for contacting an EEO Counselor.

If an EEO poster was displayed at appellant's work facility during the

relevant period, then the agency shall supplement the record with a copy

of the EEO poster. The agency shall, within thirty (30) calendar days

of the date this decision becomes final, issue a notice of processing

or new final agency decision.

A copy of the notice of processing or new 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. �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:

February 12, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations