01984682_r
08-12-1999
Dorothy E. Bobowicz, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Dorothy E. Bobowicz, )
Appellant, )
)
v. ) Appeal No. 01984682
) Agency No. 98EASNK006
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On May 21, 1998, appellant filed a timely appeal of an April 13, 1998
final agency decision, received by her on April 22, 1998, which dismissed
six of eight allegations of her complaint for failure to contact an EEO
Counselor in a timely manner.
In her December 8, 1997 complaint, appellant alleged that she was
discriminated against on the basis of her physical disability and
subjected to sexual harassment on the basis of her sex. In its final
decision, the agency accepted the following allegations: (1) on December
5, 1997, appellant was presented with a performance plan that contained
incorrect entries and typing errors; and (2) appellant determined that the
work hours of other similarly situated employees were not cut from 32 to
16 hours per pay period on November 12, 1997. The agency identified the
dismissed allegations as whether appellant was discriminated against when:
(a) on December 6, 1996 and on undetermined dates in March 1997 and
August 1997, the Commissary Officer refused to process her workers'
compensation claims;
(b) on an undetermined date in November 1995, the Commissary Officer
informed appellant that she was a "non-essential, injured and a liability"
and "not to get smart and pretty;"
(c) on an undetermined date in December 1996, the Deputy Commissary
Officer stated that "unless you are young and attractive, the Commissary
Officer will not do anything for you;"
(d) on an undetermined date in August 1996, the Commissary Officer
told appellant "you don't stand a prayer if you pursue this [workers']
compensation claim;"
(e) on an undetermined date in August 1996, the Deputy Commissary Officer
threatened appellant by stating that "it could get worse, we may cut
your hours even more;"
(f) since December 1995, appellant has been continuously overlooked and
denied advancement, work awards, cash awards or recognition.
In dismissing the six allegations, the agency noted that the EEO contact
was untimely and appellant failed to provide a reasonable explanation
for her untimely contact, despite the agency's December 15, 1997 letter
and a January 2, 1998 telephone call to appellant from the EEO Specialist
requesting explanations regarding the untimely EEO contact.
The record contains the agency's December 15, 1997 letter to appellant
wherein the agency requested explanations concerning appellant's
allegedly untimely EEO contact for allegations (a), (b), (c), (d)
and accepted allegation (2). In her response to the agency's letter,
appellant stated that she was not aware that she should have filed an EEO
complaint and that she was "relatively unschooled" regarding the rules
and regulations in EEO matters. In addition, in specific response to a
question concerning allegation (a), appellant stated, without elaboration,
that she had sought counseling through the agency regarding allegation(a).
Appellant also indicated in her response that she did not contact an
EEO Counselor because she felt intimidated.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the date of the matter alleged to be discriminatory or, in
the case of a personnel action, within 45 days of the effective date
of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides
that the agency or the Commission shall extend the 45-day time limit
when the individual shows that he or she was not notified of the time
limits and was not otherwise aware of them, that he or she did not
know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence he
or she was prevented by circumstances beyond his or her control from
contacting the counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. EEOC Regulation
29 C.F.R. �1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
Upon review, the Commission is unable to determine the propriety of the
agency's dismissal. Although in its response to appellant's appeal the
agency stated that an EEO poster with the applicable time limitations
was on display on an employee bulletin board and that appellant
had constructive notice of the time limitations, the agency has not
provided any supporting documentation that during the relevant time
period, appellant had actual or constructive notice of the applicable
limitation period for contacting an EEO Counselor. Without specific
evidence that notices or posters containing the 45-day time limit
were conspicuously posted or specific evidence that appellant was
otherwise aware of the time limit during the relevant time period, the
Commission cannot determine the timeliness of appellant's EEO contact.
See York v. Department of Veterans Affairs, EEOC Request No. 05940575
(November 3, 1994) (agency's generalized statement that appellant was
aware of time frame without information that notice actually contained
the time limit not considered sufficient proof of constructive notice);
Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6,
1995) (agency official's affidavit that he maintained bulletin boards
containing information on EEO rights and responsibilities, including time
limits, found to constitute sufficient proof of constructive notice);
Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19,
1993)(agency's generalized affirmation that it posted EEO information
is not sufficient evidence upon which it can conclude that appellant's
contact of an EEO Counselor was untimely).
In addition, the Commission notes that in its December 15, 1997 letter,
the agency did not request any information on the timeliness of EEO
contact regarding allegations (e) or (f) nor did the agency address
appellant's claim regarding allegation (a) that she had sought counseling
from the agency. The agency also has not provided any documentation
regarding the results of the January 2, 1998 telephone call to appellant.
It is well settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness."
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Also, it appears that regarding allegation (f) appellant
may be alleging recurrent incidents of discrimination. As such, the
agency is obligated to initiate an inquiry into whether any allegations
untimely raised fall within the ambit of the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (December 16,
1993) (citing Williams). Accordingly, the dismissed allegations will
be remanded to the agency for a supplemental investigation.
As a final matter, appellant is hereby advised that failure to respond
to or address the agency's written request for information can result
in the dismissal of her complaint pursuant to 29 C.F.R. �1614.107(g).
The agency's decision dismissing allegations (a) to (f) is VACATED and
the dismissed allegations are REMANDED to the agency for a supplemental
investigation regarding the issue of timeliness of EEO contact.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall conduct a supplemental investigation on the issue
of the timeliness of EEO contact, including, but not limited to, whether
appellant had actual or constructive knowledge of the time limit for
contacting an EEO Counselor more than 45 days before she 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.
2. The agency shall determine in its supplemental investigation whether
appellant contacted an EEO Counselor previously as suggested in her
response to the agency's December 15, 1997 letter. If so, appellant
shall be requested to provide the dates, names, and places of alleged
EEO contacts prior to November 17, 1997 and the nature of each of
those alleged contacts. Thereafter, if appropriate, the agency shall
supplement the record with affidavits and other relevant evidence from
those EEO individuals purportedly contacted by appellant. Such evidence
shall include, but is not limited to, the dates of the prior contacts,
the nature of those contacts and shall denote whether appellant exhibited
an intent to begin the EEO process and to pursue her allegations when
the contacts were made. If the agency is unable to obtain specific
information from EEO officials who may no longer be available, then
the agency should so state and obtain the required information from EEO
officials having custody and control of the records.
3. The agency shall also make an inquiry regarding whether appellant
is alleging a continuing violation in allegation (f) and appellant shall
provide dates when the alleged denials occurred.
4. After completion of the investigation, the agency shall decide whether
to process or dismiss the remanded allegations. 29 C.F.R. �1614.106
et seq. The supplemental investigation and issuance of a notice of
processing and/or final agency decision must be completed within 45
(forty-five) calendar days of the date this decision becomes final.
A copy of the report of supplemental investigation with supporting
documentation, notice of processing and/or a copy of the new final agency
decision 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:
August 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations