01983862
05-24-1999
Appellants, )
Donna Burkhart, Ruth A. Mollack v. Department of the Army
01983862
May 24, 1999
Donna Burkhart, )
Ruth A. Mollack )
)
Appellants, )
) Appeal Nos. 01983862 and 01983864
vs. )
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Appellants filed appeals with this Commission from final agency decisions
concerning their complaints 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 appeals are accepted in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellants'
complaints for untimely contact with an EEO Counselor.
BACKGROUND
Appellants filed formal complaints on March 16, 1997, and March 17, 1997,
respectively, alleging discrimination on the basis of sex (female)
when, on November 20, 1997, they were not given the opportunity for
temporary assignment to a supervisory position on the midnight shift.
The appellants claim that this employment action denied them training,
and thus, decreased their chances for permanent promotion.
In its final agency decisions, the agency dismissed the complaints for
untimeliness upon concluding that the appellants failed to comply with
the applicable time limits contained in 29 C.F.R. �1614.105(a)(1).
This appeal followed.
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 forty-five (45) days of the effective date of the action.
EEOC Regulations also provide that the agency or the Commission shall
extend the time limits when the individual shows that she was not notified
of the time limits and was not otherwise aware of them, that she did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
After a careful review of the file, the evidence reveals that the
appellants, in their statements on appeal, allege that they were not
aware of the applicable time limits because the EEO poster was covered
with other materials which indicated that nothing was to be removed from
the board. The agency failed to supply evidence which refutes this
contention. In fairness to the agency, however, the Commission notes
that the agency was not supplied with copies of appellants' appeals.
It should also be noted that the agency respectfully requested a chance
to review and respond to any briefs or statements that the appellants
may have submitted. In light of the circumstances, we are remanding
the matter.<0>
Accordingly, the final agency decision is VACATED for further
processing.
ORDER (E1092)
The agency is ORDERED to gather evidence on the EEO posters and,
thereafter, depending upon its findings, either issue a final agency
decision dismissing the allegation or process the vacated allegations
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the vacated allegations within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
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:
May 24, 1999
____________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
01. It should be noted that we have consistently held that an employee
is deemed to have constructive notice of the limitations period where
the agency has fulfilled its statutory duty of informing employees of
their rights and responsibilities. See Giles v. Carlin, 641 F.Supp. 629
(E.D. Mich. 1986); Kale v. Combined Ins. Co. of America, 861 F.2d 746,
752-53 (1st Cir. 1988). We have also held that a generalized affirmation
that an agency posted EEO information, without specific evidence that
the poster contained notice of the time limits, is insufficient for
constructive knowledge of the time limits for EEO Counselor contact.
Pride v. United States Postal Service, EEOC Request No. 05930134
(August 19, 1993) (citing Polsby v. Shalala, 113 S. Ct. 1940 (1399)).
Additionally, it is well-settled that where, as here, there is an issue of
timeliness, "[a]n 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).