Mary F. Simmons, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 2003
01A33920_r (E.E.O.C. Oct. 28, 2003)

01A33920_r

10-28-2003

Mary F. Simmons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mary F. Simmons v. United States Postal Service

01A33920

October 28, 2003

.

Mary F. Simmons,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33920

Agency No. 1H-374-0030-02

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated May 20, 2003, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.

On February 21, 2003, complainant contacted the EEO office claiming

that she was subjected to discrimination when on August 23, 2001,

she was instructed to report back to the inbound docks for duty after

having been on permanent limited duty for the preceding four years.

Informal efforts to resolve complainant's complaint were unsuccessful.

Subsequently, on April 22, 2003, complainant filed a formal complaint

alleging that she was the victim of unlawful employment discrimination

on the bases of race and disability.

On May 20, 2003, the agency issued a final decision dismissing the

formal complaint on the grounds of untimely EEO Counselor contact.

The agency determined that complainant's February 21, 2003 contact was

well beyond the forty-five day time limit, with respect to the August

23, 2001 incident. The agency found that complainant was, or should

have been, aware of the time limit to contact an EEO Counselor because

posters with the 45-day time limit were on display at the facility

where complainant worked. The agency further stated that complainant

was provided information on EEO rules and regulations as part of the

training for new employees. Complainant argues on appeal that she was

not aware of the time limits to contact an EEO Counselor.

On appeal, complainant challenges the agency's assertion that she was

aware, or should have been aware, of the time limits for contacting an

EEO Counselor.

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

It is the Commission's policy that constructive knowledge will be imputed

to an employee when an employer has fulfilled its obligations under

Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474

(Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d

746 (1st Cir. 1988) ). In the instant case, the agency claimed that EEO

posters informed complainant of the time limits for contacting an EEO

Counselor. The agency also states complainant was provided information on

EEO rules and regulations during the new employees' orientation training.

The Commission has held that information in an EEO Counselor's report

regarding posting of EEO information was inadequate to support application

of a constructive notice rule. Pride v. United States Postal Serv.,

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

S. Ct. 1940 (1993)). The Commission found in Pride that the agency had

merely made a generalized affirmation that it posted EEO information. Id.

The Commission found that it could not conclude that complainant's

contact of an EEO Counselor was untimely without specific evidence that

the poster contained notice of the time limit. Id.

In the present case, although the agency has asserted that the EEO

posters contained the time limit for contacting an EEO Counselor, the

agency has placed no evidence in the record supporting this assertion.

For instance, there is no copy of a poster in the record showing the time

limit nor is there an affidavit from any agency official stating that the

poster was indeed posted at a specified time, in a specified place, with

the appropriate time limits. There is also not sufficient evidence in

the record showing complainant received information on the time limits

for contacting an EEO Counselor during the orientation training for

new employees.

Because we determine that there is insufficient evidence of record

reflecting whether complainant was aware of the limitation period for

timely contacting an EEO Counselor, we VACATE the agency's dismissal

of the instant complaint. The complaint is REMANDED to the agency for

further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

The agency shall conduct a supplemental investigation on the issue of

whether complainant had constructive or actual notice of the time limits

for contacting an EEO Counselor. The agency shall supplement the record

with affidavit(s) and/or copies of posters showing that complainant

was informed of the time limit for contacting an EEO Counselor during

the relevant time frame. The agency shall also supplement the record

with evidence, if available, that shows whether complainant received

EEO information during the orientation period for new employees, and

whether she was provided information on the time limits for contacting

an EEO Counselor.

After the agency determines whether complainant had actual or constructive

notice of the time limit for contacting an EEO Counselor and acted in

a timely manner once she obtained actual or constructive knowledge, the

agency shall, within 30 days after the date that this decision becomes

final, issue a new final agency decision dismissing the complaint or

issue an acceptance letter.

A copy of the new final agency decision or letter accepting the complaint

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant 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. �� 1614.407 and 1614.408.

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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 28, 2003

__________________

Date