01990547
01-03-2001
Jayne A. Marshall, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Jayne A. Marshall v. Department of Treasury
01990547
January 3, 2001
.
Jayne A. Marshall,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01990547
Agency No. 98-2164
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 8, 1998, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and in reprisal for opposition to alleged
discriminatory practices when:
On February 12, 1996, complainant's Group Manager, Person A, brought
another Special Agent to the office space complainant shared with another
female Special Agent and commented, �. . . these are our token females�;
On March 18, 1996, complainant received a negative written caseload
review;
On May 9, 1996, complainant received an evaluation that she did not
agree with;
As a result of a May 29, 1996 meeting to resolve her dissatisfaction
with her May 9, 1996 evaluation, the written narrative was changed but
the basic ratings remained the same, and complainant was denied her
request for a reassignment;
In August 1997, complainant was told by two Special Agents that her former
Group Manager, Person A, provided a written statement to an EEO Counselor
in March 1997, in which he refers to her as a pathological liar.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. Specifically, the agency stated that none of the incidents
identified by complainant were raised with an EEO Counselor within the
applicable forty-five (45) day time limit. The agency contends that the
EEO Bulletin Board contained a posting which explained the EEO processing
guidelines, including the requirement to contact an EEO Counselor within
45 days of an alleged discriminatory incident. The agency stated that
complainant had a reasonable suspicion of discrimination as early
as February 19, 1996, when Person A asked her if she thought that
he created a hostile work environment for females. In addition, the
agency found that complainant did not establish a continuing violation.
With regard to issue (5), the agency dismissed this issue pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. The agency noted that no decision has been issued to bar
complainant from testifying in a criminal case. Thus, the agency stated
that complainant failed to show a present harm to a term, condition,
or privilege of employment.
On appeal, complainant, through her attorney, claims that the agency
�failed to give proper weight to her claim that she was guided not by
a sign to which she never paid any particular attention, but by a June
28, 1994 memorandum advising persons having complaints about sexual
harassment [to] contact either management or . . . the EEO Program
Manager.� Complainant alleges that she complied with the memorandum
as evidenced by the fact that after she learned of the adverse agency
actions on March 18, 1996, May 9, 1996, and May 29, 1996, she contacted
management within a timely manner. Complainant states that she complied
with the rules as she understood them and argues that where a conflict
exists between the printed language on a posted sign that she �may or
may not have noticed� and a memorandum actually distributed to her,
it is inequitable to enforce the language of the former.
The record contains a copy of the EEO poster on display at complainant's
work facility. This poster entitled �Your EEO Counselors� identifies the
agency's EEO Counselors and informs employees that they must contact
a counselor within 45 days of the date of the incident of alleged
discrimination. The record also contains a signed statement from a former
EEO Manager who indicated that this poster was displayed continuously on
the EEO Bulletin Board, on the eleventh floor of the Federal Building,
from 1993 until the week of September 21, 1998 (minus one week in 1994
during floor remodeling).
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 of the rights
and obligations under Title VII will be imputed to a complainant where
the agency has fulfilled its statutory duty of conspicuously posting EEO
posters informing employees of their rights. See Piccone v. U.S. Postal
Service, EEOC Request No. 05950678 (April 11, 1996) (citing Brown
v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990)).
The agency has the burden of producing sufficient evidence to support its
contention that it fulfilled its statutory duty of conspicuously posting
EEO information or that it otherwise notified the complainant of his
or her rights. In addition, the Commission has found that constructive
knowledge will not be imputed to a complainant without specific evidence
that the posters contained notice of the time limitation for contacting
an EEO Counselor. Piccone, EEOC Request No. 05950678 (citing Pride
v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993)).
In the present case, we find that the agency has shown that it
conspicuously posted EEO posters informing employees of their rights.
The agency produced a copy of the EEO poster on display at complainant's
work facility, which identifies the EEO Counselors and informs employees
that they must contact a counselor within 45 days of the date of the
incident of alleged discrimination. In addition, the agency produced a
signed statement from a former EEO Manager who indicated that this poster
was displayed continuously on the EEO Bulletin Board, on the eleventh
floor of the Federal Building, from 1993 until the week of September 21,
1998 (minus one week in 1994 during floor remodeling). We note that on
appeal, complainant does not claim that she never saw the EEO poster.
Instead, complainant states that she �may or may not have noticed� the
poster and in any case she never paid any particular attention to the
posting, but relied on a June 28, 1994 memorandum advising persons having
complaints about sexual harassment [to] contact either management or
. . . the EEO Program Manager. The record reveals that complainant's
initial contact with the EEO Office occurred on January 29, 1998.
Upon review of the record, we find that complainant had constructive
knowledge of the time limit for contacting an EEO Counselor.
Furthermore, we find that the June 28, 1994 memorandum from the Dallas
District Director to all Dallas District employees properly advised
employees that sexual harassment would not be tolerated and that if
any one had any questions concerning this policy, or if any one felt
victimized by sexual harassment, then that person should notify management
or contact the EEO Program Manager. The June 28, 1994 memorandum also
provided a toll free number to ensure prompt action on complaints of
sexual harassment. There is no indication that complainant was misled
by the memorandum or that she attempted to commence the EEO process
by contacting management. Since none of the incidents identified by
complainant were raised with an EEO Counselor within the applicable
forty-five (45) day limitation period, we find her complaint should be
dismissed for untimely EEO Counselor contact.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
January 3, 2001
__________________
Date