01984184
05-12-1999
Charles D. Jacobs, Appellant, v. John M. Bernal, U.S. Commissioner, International Boundary & Water Commission, Agency.
Charles D. Jacobs v. International Boundary & Water Commission
01984184
May 12, 1999
Charles D. Jacobs, )
Appellant, )
)
v. ) Appeal No. 01984184
) Agency No. IBWC 98-4
John M. Bernal, )
U.S. Commissioner, )
International Boundary & Water )
Commission, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's March 31, 1998
decision dismissing appellant's complaint.
Allegation 1
The agency dismissed allegation 1, alleging that appellant was not
selected for a promotion under announcement 96-13, for failure to
timely contact an EEO Counselor. The agency found that the selection
in allegation 1 was made on January 19, 1997, and that appellant first
contacted an EEO Counselor on October 10, 1997. EEOC Regulation 29
C.F.R. �1614.105(a)(1) provides that an aggrieved person must contact an
EEO Counselor within 45 days of the matter alleged to be discriminatory.
The 45 day time limit shall be extended when the individual shows that
he was not notified of the time limits and was not otherwise aware of
them or that he did not know and reasonably should not have known that
the discriminatory matter occurred. 29 C.F.R. �1614.105(a)(2).
The Commission finds that appellant is effectively arguing on appeal
that he was unaware of the time limits for contacting an EEO Counselor
until less than 45 days prior to contacting an EEO Counselor. 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) (citation
omitted). 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.
In the instant matter the agency has failed to produce any evidence
showing that appellant had actual or constructive notice of the time
limit for contacting an EEO Counselor. Therefore, we can not find
that appellant had actual or constructive notice of the time limits for
contacting an EEO Counselor. The Commission shall remand allegation 1
to the agency so that it may supplement the record with evidence showing
whether appellant had actual or constructive notice of the time limit
for contacting an EEO Counselor more than 45 days before he contacted
an EEO Counselor.
Allegations 2 and 3
The agency did not provide a reason pursuant to �1614.107 for
dismissing allegations 2 and 3 (alleging discriminatory nonselections).
The Commission finds that the agency has improperly addressed the merits
of allegations 2 and 3 in a procedural decision. Therefore, we find
that the agency improperly dismissed allegations 2 and 3.
The agency's decision dismissing allegation 1 is VACATED and we REMAND
allegation 1 to the agency for further processing in accordance with this
decision and applicable regulations. The agency's decision dismissing
allegations 2 and 3 is REVERSED and we REMAND allegations 2 and 3 to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER
Regarding allegation 1, the agency shall investigate the issue of whether
appellant had actual or constructive knowledge of the time limit for
contacting an EEO Counselor more than 45 days before he contacted an
EEO Counselor. The agency shall supplement the record with copies of
the EEO posters (or affidavits describing the posters if the posters are
unavailable) and any other evidence showing that appellant was informed,
or should have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting allegation
1 for investigation or issue a new decision dismissing allegation 1.
A copy of the letter accepting allegation 1 or new decision dismissing
allegation 1 must be sent to the Compliance Officer as referenced herein.
The agency is ORDERED to process allegations 2 and 3 in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received allegations 2 and 3 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.
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� (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:
May 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations