01A41096_r
03-31-2004
Beth Mary Norden, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.
Beth Mary Norden v. Smithsonian Institute
01A41096
March 31, 2004
.
Beth Mary Norden,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A41096
Agency No. 03-20-082603
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 4, 2003, dismissing
her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On April 7, 2003, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
On August 26, 2003, complainant filed a formal EEO complaint wherein she
claimed she was discriminated against on the bases of sex and disability.
In its FAD, the agency determined that the instant complaint was comprised
of two claims, identified in the following fashion:
1. on or about June 22, 2002, while complainant was requesting a
reasonable accommodation, she was subjected to a comment that she was
probably going through menopause and was probably more emotional than
she otherwise would be; and
2. on November 30, 2002, her "light duty" status was terminated.
In its November 4, 2003 FAD, the agency dismissed complainant's complaint
on the grounds of untimely EEO Counselor contact. Specifically, the
agency determined that complainant's initial EEO contact occurred on
April 7, 2003, beyond the 45-day limitation period with respect to the
matters identified in the two claims addressed above.
On appeal, complainant, through her attorney, requests an extension of
the 45-day limitation period to contact an EEO Counselor because she
"was never notified of the time limit, had never heard of the time limit,
had not read about the time limit, and was not aware of the time limit."
In response, the agency argues that complainant had constructive notice of
the time limit for contacting an EEO Counselor. The agency further argues
that its website informed all employees of the time limits for contacting
an EEO Counselor and is available to all employees; and that EEO posters
with pertinent information were on display at complainant's workplace.
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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations 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.
It is the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligations under
Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991) (citing Kale v. Combined Ins. 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 Serv., EEOC Request No. 05930134 (Aug. 19, 1993) (citing
Polsby v. Shalala, 113 S. Ct. 1940 (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 complainant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit. Id.
As a preliminary matter, the Commission determines that claim (1)
is not comprised merely of the matter identified by the agency:
that complainant was subjected to a comment regarding menopause when
requesting a reasonable accommodation. Instead, a fair reading of the
pre-complaint documents and the formal complaint reflects that complainant
claimed in claim (1) that she was subjected to discrimination when the
agency refused to "make reasonable accommodations for the handicapping
conditions I suffered as a result of the dengue hemorrhagic fever.�
Complainant acknowledges that at one point, she was informed by an
agency official that she was �probably going through menopause and was
therefore being overly emotional." However, this comment cannot be
viewed in isolation as a single claim; instead, it constitutes merely
one incident relating to the purported denial of reasonable accommodation
claim. Complainant further claimed that instead of providing her with
reasonable accommodation, the agency terminated her part-time employment,
as identified by the agency in claim (2). The Commission has held that
a failure to accommodate may constitute a recurring violation, that is,
a violation that recurs anew each day that an employer fails to provide
an accommodation. See Mitchell v. Department of Commerce, EEOC Appeal
No. 01934120 (March 4, 1994).
Moreover, the Commission further finds while the agency has asserted that
the EEO posters contained the time limit for contacting an EEO Counselor,
the agency has placed no evidence in the record supporting this assertion.
For instance, there is no copy of a poster in the record showing the
time limit nor is there an affidavit from any agency official stating
that the poster was indeed posted at a specified time, in a specified
place, with the appropriate time limits. There is also not sufficient
evidence in the record showing complainant had actual or constructive
notice of the time limit for contacting an EEO Counselor.
Because we determine that there is insufficient evidence of record
reflecting whether complainant was aware of the limitation period for
timely contacting an EEO Counselor, we VACATE the agency's dismissal of
the instant complaint. The complaint as identified herein is REMANDED
to the agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation on the issue of
whether complainant had constructive or actual notice of the time limits
for contacting an EEO Counselor. The agency shall supplement the record
with affidavit(s) and/or copies of posters showing that complainant was
informed of the time limit for contacting an EEO Counselor during the
relevant time frame.
After the agency determines whether complainant had actual or constructive
notice of the time limit for contacting an EEO Counselor and whether
she acted in a timely manner once she obtained actual or constructive
knowledge, the agency shall, within 30 days after the date that this
decision becomes final, issue a new final agency decision dismissing
the complaint or issue an acceptance letter.
A copy of the new final agency decision or letter accepting the complaint
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 31, 2004
__________________
Date