Teresa A. Scott, Appellant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01982976 (E.E.O.C. Apr. 13, 1999)

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