01A21975_r
07-05-2002
Miriam W. Grier, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Miriam W. Grier v. Department of the Treasury
01A21975
July 5, 2002
.
Miriam W. Grier,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21975
Agency No. 02-1041
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO
Counselor contact.
The EEO Counselor's Report reflects that on September 13, 2001,
complainant sought EEO counseling claiming that she had been discriminated
against on the basis of reprisal. Subsequently, complainant filed a
formal complaint claiming that she had been discriminated against when:
(1) in August 1999, she was transferred to the I-85 building, and although
the transfer was supposed to last two weeks, management denied all her
requests to be moved out of building I-85;
(2) on June 15, 2001, complainant was not selected for the position of
Tax Resolution Representative, GS-526/5/7/9, under Vacancy Announcement
Number WI-00-TRR-001.
Complainant further claimed that her annual evaluation for the period
covering July 1, 1999 through June 30, 2000, and her departure rating
for the period July 1, 2000 to February 9, 2001, were lowered. Finally,
complainant argued that the discrimination against her was continuous.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact. The agency found that complainant had
engaged in prior EEO activity and was therefore aware of applicable
time limits. The agency also found that complainant did not seek EEO
counseling within 45 days of the incidents raised in the complaint.
On appeal, complainant acknowledges that she filed an EEO complaint in
1998, but contends that she was unaware of the time limits for seeking
EEO counseling.
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). We find that the agency has failed to meet this burden.
Complainant claims that she was unaware of the time limits provided
by EEOC Regulations. The agency has failed to provide documentation
sufficient to show that EEO posters with applicable time limits were
posted at the facility where complainant worked at the time of the
alleged discriminatory incident and/or that complainant was otherwise
put on notice of the applicable time limits. Accordingly, the agency
has failed to provide evidence sufficient to support the application of
a constructive notice rule. Pride v. USPS, EEOC Request No. 05930134
(August 19, 1993).
Accordingly, the agency's final decision dismissing the complaint for
untimely EEO Counselor contact is REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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
July 5, 2002
__________________
Date