Lisa L. Summers, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01976989 (E.E.O.C. Apr. 28, 1999)

01976989

04-28-1999

Lisa L. Summers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lisa L. Summers v. United States Postal Service

01976989

April 28, 1999

Lisa L. Summers, )

Appellant, )

)

v. ) Appeal No. 01976989

) Agency No. 1-D-272-0003-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated August 7, 1997, which the agency issued pursuant to EEOC

Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

The final agency decision identified allegations of sexual harassment

which allegedly occurred on September 9, 1996, in March 1996, and

on an unspecified date in 1995; and sexually offensive remarks which

allegedly were made in March 1996, and in January and February 1995.

The decision accepted the September 1996 incident for investigation.

The decision dismissed the remaining allegations, finding the appellant's

September 16, 1996 EEO Office contact untimely.

On appeal, the appellant submits an affidavit wherein she represents that

she was not aware that a victim of sexual harassment and discrimination

must contact an EEO counselor with 45 days of the alleged unlawful action.

The appellant also represents that she has never seen any posted notice

describing the procedures for filing an EEO complaint. The appellant

submits two other affidavits: one from a coworker who represents that he

has never seen a posted notice describing the procedures for filing an

EEO complaint; and another from her sister who initiated this complaint

on the appellant's behalf.

In response, the agency submits an affidavit from a Manager of the

Bulk Mail Center. He attests that the current EEO poster has been on

display on two official bulletin boards (one on second floor next to the

elevator; and one on workroom floor next to the vendeteria) since 1992.

The Manager also attests that the poster notifies employees that they

must seek counseling within 45 calendar days of the date of the alleged

discriminatory act or of the effective date of an alleged discriminatory

personnel action. The Manager further attests that the poster contains

the address and telephone number of the designated local EEO Office.

In order to commence the running of the 45-day-limitations period for

requesting EEO counseling, the complainant must have either actual or

constructive knowledge of the time limit. York v. Department of Veterans

Affairs, EEOC Request No. 05940575 (November 3, 1994). The Commission

has long held that Constructive knowledge of the time limitation will

be imputed to an employee where an agency has fulfilled its statutory

obligation by posting notices informing employees of their rights and

obligations under Title VII.<1> See, e.g. Santiago v. United States

Postal Service, EEOC Request No. 05950272 (July 6, 1995); Yashuk

v. United States Postal Service, EEOC Request No. 05890382 (June 2,

1989).

After a review of the record, including the appeal submissions of the

parties, the Commission finds that the appellant should be deemed to

have had constructive knowledge of the 45-day time limitation for EEO

counselor contact. According to the Manager, the EEO poster with the

required information has been posted in two locations at the appellant's

workplace since 1992. See Pride v. United States Postal Service, EEOC

Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala, 113

S. Ct. 1940 (1993), vacating and remanding Polsby v. Chase, 970 F.2d 1360

(4th Cir. 1992). The appellant and her coworker represent that they

have not seen a posted notice; however, they do not state that no such

posters were posted on the official bulletin boards as described in the

Manager's affidavit.

In finding the appellant's EEO counselor contact untimely regarding

the dismissed incidents, the Commission has also considered whether the

incidents should be deemed timely under a continuing violation theory.

However, the alleged incidents of sexual harassment concern different

types of harassment by different individuals. It also appears that, to

the extent that the alleged harassment was continuing in nature, it was

so because the appellant did not file a complaint sooner. See Sabree

v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d

396, 402 (1st Cir. 1990) (a knowing plaintiff has an obligation to file

promptly with the EEOC or lose his claim); Roberts v. Gadsden Memorial

Hospital, 850 F.2d 1549 (11th Cir. 1988) (per curiam) (a claim arising

out of an injury which is "continuing" only because a plaintiff knowingly

fails to seek relief is exactly the sort of claim that Congress intended

to bar by the limitations period).

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of the appellant's December 30, 1996 complaint allegations.

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. 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. If you file a request to reconsider and also file a

civil action, 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

1The Commission has held EEOC Regulation 29 C.F.R. �1614.102(a)(4)

imposes an obligation on the agency to make written materials available to

all employees and applicants, informing them of the variety of equal

employment opportunity programs and administrative and judicial remedial

procedures available to them, and to prominently post such written

materials throughout the workplace, including in all personnel and EEO

offices. Spell v. United States Postal Service, EEOC Request No. 05950095

(August 24, 1995).