Jacqueline Watts, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01981144 (E.E.O.C. Apr. 28, 1999)

01981144

04-28-1999

Jacqueline Watts, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jacqueline Watts v. United States Postal Service

01981144

April 28, 1999

Jacqueline Watts, )

Appellant, )

)

v. ) Appeal No. 01981144

) Agency No. 1-C-441-0173-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's November 4, 1997 decision

dismissing appellant's complaint on the basis of untimely EEO counselor

contact, is not proper pursuant to 29 C.F.R. �1614.107(b).

The record shows that appellant sought EEO counseling on April 29, 1997,

alleging that she had been discriminated against on the bases of color

(black) and sex (female) when on January 30, 1997, and effective February

15, 1997, she was demoted to a part-time flexible distribution clerk.

The record contains a PS-Form 50 which states that effective February

15, 1997, appellant would be reassigned. Appellant further alleged that

she received the PS-Form 50 on February 25, 1997. The EEO Counselor's

Report shows that there was an EEO poster on the agency premises where

appellant worked.

The agency issued a final decision dismissing the complaint on the basis

of untimely EEO counselor contact. The agency found that appellant

had failed to provide any evidence to toll the 45-day time limit for

initiating EEO counseling. On appeal, appellant contends that: (1)

when she received the PS-Form 50 she did not realize that she had been

discriminated against because she was informed that employees with on

the job injuries would be brought downtown; (2) in late April 1997,

she finally received a list of other disabled employees who were not sent

downtown; (3) she was unaware of her right to file an EEO complaint; and,

(4) "when all this started" she called the union and was told she could

not file anything because the union was filing a class action grievance.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).

Appellant contends that she was unaware of the alleged discrimination

against her until she saw a list of employees in late April 1997.

Consequently, she contends, her April 29, 1997 initial EEO counselor

contact was timely because she sought EEO counseling within 45 days of

being aware of the discrimination. Nevertheless, appellant's argument

regarding her unawareness of discrimination until late April 1997,

is not persuasive to the Commission because she also claims that when

"all this started" she contacted the union and was told she could not

file anything. Appellant's own statement suggests that she, in fact,

suspected discrimination well before April 1997, and was looking for

ways to address the situation.

Appellant also contends that she was unaware of her right to seek EEO

counseling. The Commission has held that where there is an issue of

timeliness, the 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). In this case, the EEO Counselor's Report indicates that there

was an EEO poster on the premises: no other evidence has been provided

by the agency. The Commission has held that to establish constructive

notice an agency must post EEO information containing notice of the

time limits for EEO counselor contact and provide independent evidence

of record supporting such. Pride v. United States Postal Service, EEOC

Request No. 05930134 (August 19, 1993). We have consistently held that

information provided by the agency on an EEO Counselor's Report is not

sufficient to establish constructive notice of the 45-day time limit

for EEO counselor contact by appellant.

Based on the foregoing, the agency has failed to meet its burden under

Williams and it erred by dismissing the complaint on the grounds of

untimely EEO counselor contact. The FAD is VACATED and the complaint

is REMANDED for further processing in accordance with this decision and

applicable regulations.

ORDER

The agency is ORDERED to take the following actions:

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall undertake a supplemental investigation to determine

if EEO posters with the applicable time limits were posted at the

agency's premises where appellant worked at the time of the alleged

discriminatory action. Independent evidence regarding the presence of

said posters will be included in the record.

Within sixty (60) calendar days of the date this decision becomes final,

the agency shall issue a notice of processing and/or a new FAD regarding

appellant's complaint.

A copy of the agency's notice of processing and/or new FAD regarding

the complaint 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. �l6l4.604(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 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations