01984143_r
06-16-1999
LaFondra D. Brown, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
LaFondra D. Brown, )
Appellant, )
)
v. ) Appeal No. 01984143
) Agency No. AL900980509
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On April 29, 1998, appellant filed an appeal with this Commission from
a final agency decision (FAD) 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.<1> In her complaint,
appellant alleged that she was subjected to discrimination on the basis
of national origin (American) when appellant was rejected by the Civilian
Personnel Office (in Panama), because appellant was a non-status employee.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for untimely counselor contact.
On appeal, appellant argues that she was not aware of the EEO process
until filing. Appellant contends that she contacted a counselor as soon
as a friend informed her of the EEO complaint process.
In her February 24, 1998 formal complaint, appellant complained that she
was discriminated against on August 12, 1996. Appellant's EEO intake
form is dated January 29, 1998. A review of the record also reveals
that appellant had prior civil service employment experience.
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 can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
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.
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 (Sept. 12,
1991). However, we have 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. USPS,
EEOC Request No. 05930134 (Aug. 19, 1993).
The Commission finds that appellant had a reasonable suspicion of
discrimination on August 12, 1996, but did not contact a counselor until
January 29, 1998. However, appellant claims that she had no knowledge
of the EEO process until she filed, and therefore could not have known
about the forty-five (45) day time limitation. The record does not
contain any evidence to show that appellant was aware of her rights and
obligations in the EEO process. Accordingly, the agency's decision is
VACATED, and this matter is REMANDED for a supplemental investigation.
ORDER
The agency is ORDERED to perform the following:
Obtain an affidavit or statement from a responsible agency official
regarding the posting of EEO information at any of appellant's work sites,
and include such information with the record of the present case;
Obtain any other information from which appellant's exposure to the EEO
process may be inferred, including but not limited to training courses
attended or documents received that pertain to the EEO process, and
include such information with the record of the present case;
Obtain an affidavit or statement from appellant concerning the exact
time and manner that she learned of the procedures to initiate the EEO
process, and include such information with the record of the present case.
Thereafter, the agency shall determine whether appellant had actual
or constructive knowledge of EEO time limitations more than forty-five
(45) days prior to her initial counselor contact of January 29, 1998.
Within thirty (30) days of the date this decision becomes final, the
agency shall issue a new FAD or notice of processing of appellant's
complaint. A copy of the new FAD or notice of processing shall 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 16, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The agency was unable to supply a
copy of a certified mail return receipt or any other material
capable of establishing the date appellant received the agency's
final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) calendar days of
receipt of the agency's final decision. See, 29 C.F.R. �1614.402.