01971518_r
04-13-1999
Barbara Wheeler, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara Wheeler, )
Appellant, )
)
v. ) Appeal No. 01971518
) Agency No. 1G-754-1129-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint 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. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final decision was issued
on November 5, 1996. The appeal was postmarked December 5, 1996.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On July 8, 1996, appellant initiated contact with an EEO Counselor.
Appellant stated in the EEO Request for Counseling form that she was
improperly terminated from her position with the agency. Informal efforts
to resolve her concerns were unsuccessful.
On September 13, 1996, appellant filed a formal complaint, alleging
that she was the victim of unlawful employment discrimination on the
bases of race, sex, disability, and reprisal. Appellant's complaint was
comprised of the same matter for which she had undergone EEO counseling,
discussed above.
On November 5, 1996, the agency issued a final decision dismissing
appellant's complaint for failure to initiate timely contact with an
EEO Counselor. Specifically, the agency found that appellant was issued
a notice of removal dated June 8, 1995, with an effective date of July
14, 1995; that appellant filed a grievance subsequent to her removal;
and that an arbitrator issued a decision on May 29, 1996, upholding
the removal. The agency determined that appellant had or should have
had a reasonable suspicion of unlawful employment discrimination at the
time of her removal in July 1995, and not on the date of the arbitrator's
decision in May 1996.
The agency concluded that appellant's EEO Counselor contact on July 8,
1996, was untimely with regard to her removal from agency employment.
On appeal, appellant's attorney argues that appellant only developed
a reasonable suspicion of unlawful employment discrimination and only
became aware of the EEO complaint process during her pursuit of the
grievance relating to her job separation.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
Appellant argues on appeal that she was unaware of the existence of a
limitation period for contacting an EEO Counselor until she pursued a
grievance regarding her separation from agency employment. It is the
Commission's policy that constructive knowledge will be imputed to an
employee when an employer has fulfilled its obligation of informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request 05910474 (September 12, 1991).
However, the Commission has 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. USPS,
EEOC Request No. 05930134 (August 19, 1993). The record in this case
contains no specific evidence that any poster or other method of providing
required information contained notice of the time limits for contacting
an EEO Counselor. We are unable to ascertain precisely when appellant was
informed of the necessity for initiating contact with an EEO Counselor.
Appellant also argues on appeal that she only developed a reasonable
suspicion of unlawful employment discrimination during the pursuit of the
grievance relating to her job separation. Given the present record, we
are unable to ascertain the circumstances that caused appellant to develop
a reasonable suspicion of unlawful employment discrimination subsequent
to her termination from her employment, during the grievance process.
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to initiate contact with an EEO Counselor in a timely fashion
is VACATED. Appellant's complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to conduct a supplemental investigation
to ascertain whether appellant had been informed of the necessity of
initiating contact with an EEO Counselor and the time limits for doing
so, and when appellant had been so informed.
2. The agency is also ORDERED to provide appellant with the opportunity
to submit information relating to the exact date that she became aware
that she was the victim of unlawful employment discrimination relating
to her job separation; the information she received that caused her
to believe that she was the victim of discrimination; the manner in
which this information was received; and how the information triggered
a reasonable suspicion of unlawful employment discrimination.
Thereafter, the agency shall issue a final agency decision or notify
appellant that her complaint is being processed. The supplemental
investigation and issuance of the final decision or notice of processing
must be completed within thirty (30) calendar days of the date this
decision becomes final.
A copy of the agency's new final decision or the notice of processing
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(c) (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:
April 13, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations