01983856
06-15-1999
Elsie L. Scott, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Elsie L. Scott v. United States Postal Service
01983856
June 15, 1999
Elsie L. Scott, )
Appellant, )
) Appeal No. 01983856
v. ) Agency No. 4G770009598
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The appeal is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on December 30, 1997, alleging
discrimination on the basis of physical disability (cluster migraine)
when, on August 5, 1996, she was placed on restricted sick leave and
not allowed to take early retirement.
In its final agency decision, the agency dismissed the complaint for
untimeliness when it concluded that the appellant failed to comply
with the applicable time limits contained in 29 C.F.R. �1614.105(a)(1).
This appeal followed.
ANALYSIS AND FINDINGS
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.
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.
In the present case, the record reflects that appellant first sought
EEO counseling on September 17, 1997, which is beyond the forty-five
(45) calendar day time limit set by the Regulations, for the alleged
discriminatory events. The Commission notes, however, that appellant's
statement on appeal indicates that she did not know, nor was she ever
informed, of her rights under the law. We have consistently held that
an employee is deemed to have constructive notice of the limitations
period where the agency has fulfilled its statutory duty of informing
employees of their rights and responsibilities. See Giles v. Carlin,
641 F.Supp. 629 (E.D. Mich. 1986); Kale v. Combined Ins. Co. of
America, 861 F.2d 746, 752-53 (1st Cir. 1988). We have also 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. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala,
113 S. Ct. 1940 (1933)). Additionally, 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). Based on the foregoing,
the Commission concludes that the agency failed to meet its burden of
providing sufficient evidence in order to prove that appellant knew,
or should have known, her rights and responsibilities under the law.
Accordingly, the agency's decision to dismiss appellant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation in order to
determine whether or not appellant had actual or constructive knowledge
of the applicable time limits and, depending upon its findings, either
issue a new final agency decision rejecting the remanded allegations or
process them in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
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 acknowledgment 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(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:
June 15, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations