Appellants, )

Equal Employment Opportunity CommissionMay 24, 1999
01983862 (E.E.O.C. May. 24, 1999)

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).