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).