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