01986144
04-08-1999
Gloria J. Svoboda, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Gloria J. Svoboda v. Department of Agriculture
01986144
April 8, 1999
Gloria J. Svoboda, )
Appellant, )
)
v. ) Appeal No. 01986144
) Agency No. 980435
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's June 15, 1998
decision dismissing appellant's complaint alleging termination as a
temporary Forestry Technician (and denial of rehire eligibility rights)
on October 3, 1997 for failure to timely contact an EEO Counselor.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 45 day time limit shall be extended when
the individual shows that she was not notified of the time limits
and was not otherwise aware of them or that she did not know and
reasonably should not have known that the discriminatory matter occurred.
29 C.F.R. �1614.105(a)(2). The agency found, and the EEO Counselor Report
shows, that appellant initially requested EEO counseling on January 26,
1998.
Appellant argues that she was unaware of the time limits for contacting
an EEO Counselor until a conversation she had on January 26, 1998 with
the California Chapter President of the Coalition of Minority Employees.
It is the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligations under
Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861
F.2d 746 (1st Cir. 1988)). The Commission has held that information
in an EEO Counselor's report regarding posting of EEO information
was inadequate to support application of a constructive notice rule.
Pride v. United States Postal Serv., EEOC Request No. 05930134 (Aug. 19,
1993) (citation omitted). The Commission found in Pride that the agency
had merely made a generalized affirmation that it posted EEO information.
Id. The Commission found that it could not conclude that appellant's
contact of an EEO Counselor was untimely without specific evidence that
the poster contained notice of the time limit. Id.
In the instant matter the agency found in the decision that appellant
had constructive notice of the time limit for contacting an EEO Counselor
because: (1) the agency issues an EEO policy statement to all employees;
(2) information with the time limit is displayed on all official bulletin
boards; (3) EEOC counselor posters are displayed at every work site;
and (4) appellant received EEO related training on June 22, 1995.
Appellant specifically disputes the agency's contentions regarding
constructive notice.
The agency has not placed any evidence in the record to support its
findings of constructive notice. There is no copy of the EEO policy
statement in the record and there is no evidence in the record showing the
policy statement was provided to appellant. The agency has not supplied a
copy of any EEO poster(s) or an affidavit describing the location of the
poster(s) during the relevant time period. The agency has not supplied
a copy of a list of attendees for the June 22, 1995 training or evidence
showing that the time limit for contacting an EEO Counselor was discussed
in the training. Therefore, we can not find that appellant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand the complaint to the agency so that it may
supplement the record with evidence showing whether appellant had actual
or constructive notice of the time limit for contacting an EEO Counselor
more than 45 days before she contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall investigate the issue of 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.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the letter accepting the complaint or new decision dismissing
the complaint must be sent to the Compliance Officer as referenced
herein.
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� (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 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations