01A32474_r
07-09-2003
Colleen A. Green, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Colleen A. Green v. U.S. Department of Agriculture
01A32474
July 9, 2003
.
Colleen A. Green,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A32474
Agency No. 020759
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated February 4, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the basis of disability when: complainant was not
selected for the position of Program Technician, CO-3 through CO-7,
on July 25, 2001.
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. Complainant argues that she was unaware of the time limit for
contacting an EEO Counselor.
The agency noted that complainant was notified in writing on July 25,
2001, that she was not selected for the position at issue; however,
she failed to contact an EEO Counselor until February 12, 2002, which
was beyond the applicable limitations period. The agency stated that it
submitted evidence that complainant was given EEO/Civil Rights Training
on August 28, 1995, and Introduction to Civil Rights on January 15, 1998.
The agency noted that complainant's signature is affixed to the agency's
submitted attendance roster. Further, the agency claimed that complainant
should have been aware of the time limit since the agency posted and
made available to all employees a copy of the Notice of Appointment of
EEO Counselor and contact information on September 1, 1998. Finally, the
agency notes that complainant admits she ultimately located the necessary
information to file a discrimination complaint at the agency's website.
It is the Commission's policy that constructive knowledge of EEO rights
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. United States Postal Service, EEOC
Request No. 05950678 (April 11, 1996), (citing Brown v. Department
of Commerce, EEOC Request No. 05890978 (January 10, 1990)). However,
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 complainant of
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 limitations for contacting
an EEO Counselor. See id. (citing Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993)).
In the present case, the agency has failed to produce any evidence showing
that complainant had actual or constructive notice of the time limit for
contacting an EEO Counselor. The agency did not provide any evidence
in the record showing that EEO posters were on display in complainant's
work facility, either in the form of a copy of any EEO posters or in an
affidavit describing the location of the posters during the relevant time
period. Nor does the agency provide persuasive evidence that complainant
was otherwise notified of the time limit for contacting an EEO Counselor
at any time during her employment with the agency. The only relevant
information in the record was a signed Request, Authorization Agreement
and Certification of Training for EEO/CR training in August 1995, an
attendance roster at EEO/Civil Rights Training on January 15, 1998,
and a copy of an Appointment of Equal Employment Opportunity Counselor.
This information alone, however, is inadequate to satisfy the agency's
burden of showing that the complainant had actual or constructive notice
of the time limit for contacting an EEO Counselor. Specifically,
none of the alleged information provided shows that complainant was
advised of the forty-five-day time limit for contacting an EEO Counselor.
Therefore, the Commission cannot find that the complainant had actual or
constructive notice of the time limits for contacting an EEO Counselor and
we can not find complainant's contact of an EEO Counselor to be untimely.
Accordingly, the agency's decision to dismiss complainant's complaint
is REVERSED and the complaint is REMANDED to the agency for further
processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (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
July 9, 2003
__________________
Date