01984435_r
06-28-1999
Jean Nowlin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jean Nowlin, )
Appellant, )
)
v. ) Appeal No. 01984435
William J. Henderson, ) Agency No. 4D280004898
Postmaster General, )
United States Postal Service, )
Agency. )
)
______________________________)
DECISION
On May 5, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated April 21, 1998, pertaining to
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In her complaint, appellant alleged that she was subjected to
discrimination on the basis of sex when: (1) from September 8, 1997
through December 19, 1997, her work hours were changed and (2) on October
10, 1997, she was issued a Notice of Suspension of Fourteen Days or Less.
The agency accepted the portion of allegation (1) covering the period from
October 18, 1997 through December 19, 1997. The agency dismissed the
remaining portion of allegation (1) and allegation (2) for untimely EEO
counselor contact. Specifically, the agency found that appellant sought
counseling on December 2, 1997, for alleged discrimination occurring
from September 8, 1997 through October 17, 1997. The agency noted that
a Supervisory affidavit to the file indicated that EEO posters with
the applicable contact time frames were posted at appellant's work site.
Further, the agency noted that appellant had engaged in prior EEO activity
and she should be versed in the relevant time limits.
On appeal, appellant contends that she was not aware of the 45-day
limitation until she actually proceeded with this claim. Appellant
declares that she was never made aware of the time limitation during
her own prior EEO activity. However, appellant concedes that she is
not sure whether the EEO posters were posted in her work area.
In response to appellant's appeal, the agency emphasizes that a management
official has sworn, under penalty of perjury, that an EEO posting with
applicable time frames was done in appellant's work area since 1996.
The record contains the affidavit of the Customer Services Supervisor,
which states that EEO posters containing information about the applicable
45-day time limit for contacting an EEO Counselor were on display at
appellant's work site for at least two years, since his assignment to
that office in January 1996.
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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
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.
While appellant contends that she was unaware of the applicable time
limit for initiating EEO contact, the agency presented evidence of
record to show that posters containing the time limit were on display at
appellant's work site during the relevant time period. Regarding the
placement of posters at the agency work site, we note that it is the
Commission's policy that constructive knowledge will be imputed to an
employee when an employer has fulfilled its obligation of informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request 05910474 (September 12, 1991).
Furthermore, the Commission notes that appellant had previously engaged
in EEO activity which raises a presumption that she would be aware of the
applicable time limits. Consequently, we find that appellant failed to
present adequate justification to warrant an extension of the applicable
time limit. Accordingly, the agency's decision is hereby AFFIRMED.
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 (S0993)
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 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations