01982976
04-13-1999
Teresa A. Scott, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Teresa A. Scott v. Federal Deposit Insurance
01982976
April 13, 1999
Teresa A. Scott, )
Appellant, )
)
v. ) Appeal No. 01982976
) Agency No. FDIC-97-101
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
Appellant filed the instant appeal from the agency's January 30, 1998
decision dismissing a portion of appellant's complaint (allegation A)
for failing to state a claim and the remainder of appellant's complaint
(allegations B - H) for failure to timely contact an EEO Counselor.
Allegation A
The agency dismissed allegation A (Person A requested, by memorandum
dated May 29, 1997, authorization to restore appellant's leave balance
to a particular level) for failing to state a claim. Appellant has
not claimed that the request at issue was approved in whole or in part.
The Commission finds that appellant was not aggrieved by the incident
in allegation A and that allegation A was properly dismissed pursuant
to 29 C.F.R. �1614.107(a).
Allegations B - H
Allegations B - H concern incidents involving appellant's leave and
insurance occurring from July 11, 1995 to, most recently, November 1996.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 45 day time limit shall be extended when the
individual shows that he was not notified of the time limits and was
not otherwise aware of them or that he did not know and reasonably
should not have known that the discriminatory matter occurred.
29 C.F.R. �1614.105(a)(2). The agency found, and appellant admits, that
appellant initially requested EEO counseling regarding allegations B -
H on June 6, 1997.
Appellant argues that she was unaware of the time limits for contacting an
EEO Counselor until June 4, 1997 which is less than 45 days prior to her
initial contact of an EEO Counselor. 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)).
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 appellant's contact
of an EEO Counselor was untimely without specific evidence that the
poster contained notice of the time limit. Id.
In the instant matter the agency claims in the final decision and on
appeal that directives about the EEO process had been sent to appellant's
home address, posters regarding the EEO process (including time limits
for contacting an EEO Counselor) were posted, and the EEO process was
available through the agency computer network. The agency, however,
has failed to produce any evidence showing that appellant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
The agency has not supplied a copy of any EEO poster(s) or an affidavit
describing the location of the poster(s) during the relevant time period.
The agency has not produced any evidence showing that appellant was sent
and/or received directives regarding the EEO process. The agency has
not supplied a copy for the record of any of the directives. The agency
has not supplied any copies of information available on the agency's
computer network. Therefore, we can not find that appellant had actual or
constructive notice of the time limits for contacting an EEO Counselor.
The Commission shall remand allegations B - H to the agency so that it
may supplement the record with evidence showing whether appellant had
actual or constructive notice of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
On appeal the agency argues that allegations B - H should be dismissed for
failing to state a claim. This grounds for dismissal was not asserted by
the agency in the final decision and appellant has not had an opportunity
to rebut this grounds for dismissal. The Commission declines to consider
in the instant decision whether allegations B - H fail to state a claim.
If, on remand, the agency wishes to dismiss allegations B - H for failing
to state a claim, then it should reissue such a decision so that appellant
will have the opportunity to contest such a grounds for dismissal.
The agency's decision dismissing allegation A is AFFIRMED. The agency's
decision dismissing allegations B - H is VACATED and we REMAND allegations
B - H to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall investigate the issue of whether appellant had actual
or constructive knowledge of the time limit for contacting an EEO
Counselor more than 45 days before she contacted an EEO Counselor.
The agency shall supplement the record with copies of the EEO posters
(or affidavits describing the posters if the posters are unavailable)
and any other evidence showing that appellant was informed, or should
have known, of the time limits for contacting an EEO Counselor.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 60 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting allegations B
- H for investigation or issue a new decision dismissing allegations B
- H. A copy of the letter accepting allegations B - H or new decision
dismissing allegations B - H must be sent to the Compliance Officer as
referenced herein.
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� (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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 13, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations