Anthony E. Rowe, Complainant,v.Davis J. Barram, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a03039 (E.E.O.C. Jul. 20, 2000)

01a03039

07-20-2000

Anthony E. Rowe, Complainant, v. Davis J. Barram, Administrator, General Services Administration, Agency.


Anthony E. Rowe v. General Services Administration

01A03039

July 20, 2000

.

Anthony E. Rowe,

Complainant,

v.

Davis J. Barram,

Administrator,

General Services Administration,

Agency.

Appeal No. 01A03039

Agency No. 00R8PBSAER(1)1

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision pertaining to his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts

the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. �1614.405).

On September 21, 1999, complainant contacted the EEO office regarding

claims of discrimination based on race and physical disability.

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, complainant filed a formal complaint dated December

23, 1999. In an attachment to the complaint, complainant requested

a variety of remedies, including �compensation from unequal pay,� and

�compensation from all-work related injuries.�

In its decision, the agency framed complainant's claims as follows:<2>

1) Complainant was denied worker's compensation as a result of his

disability papers being removed from his personnel file;

2) Complainant was placed on a leave restriction by his supervisor;

3) Complainant's job position was changed from a GS position to a WG

position in 1996.

The agency dismissed claims (1) and (2) as moot, stating that �the matter

of [complainant's] medical records has been brought to management's

attention, the necessary documentation has been obtained along with the

removal of the leave restriction.� Claim (3) was dismissed for untimely

EEO Counselor contact. According to the agency, the 1996 event was not

raised with an EEO Counselor until June 1998.

On appeal, complainant reiterates his contention that he has suffered

discrimination based on his race and disability. Further, complainant

alleges that the EEO office is working with management.

Claims (1) and (2)

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(5)) provides

for the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in complainant's complaint are

moot, the factfinder must ascertain whether (1) it can be said with

assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged discrimination.

See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo

v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).

When such circumstances exist, no relief is available and no need for

a determination of the rights of the parties is presented.

The Commission finds that the dismissal of claims (1) and (2) as moot

was improper. These claims have not been rendered moot because, at a

minimum, complainant requested compensatory damages, as reflected by a

fair reading of his requested remedies. The agency has not addressed

this request. The Commission has held that compensatory damages are

available to federal sector complainants under the Civil Rights Act

of 1991, Pub. L. No. 102-166, 105 Stat. 1071. Jackson v. United States

Postal Service, EEOC Appeal No. 01923399 (Nov. 12, 1992), aff'd, Jackson

v. United States Postal Service, EEOC Request No. 05930306 (Feb. 1,

1993). Should complainant prevail on this complaint, the possibility of

an award of compensatory damages exists. See Glover v. United States

Postal Service, EEOC Appeal No. 01930696 (Dec. 9, 1993). Therefore,

we find that claims (1) and (2) are not moot because the agency has not

addressed complainant's request for compensatory damages.

Claim (3)

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 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.

In claim (3), complainant contends he suffered discrimination regarding

a position change in 1996. The record reflects that complainant did

not contact the EEO office until 1998, well beyond the forty-five day

time limitation. Complainant has not presented evidence on appeal that

would justify waiving or tolling the time limit. Therefore, we find

that the agency properly dismissed claim (3).

Accordingly, the agency's decision to dismiss claim (3) was proper

and is AFFIRMED. The agency's decision to dismiss claims (1) and (2)

was improper and is REVERSED. Claims (1) and (2) are REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims (claims (1) and (2))

in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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. 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 (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:

July 20, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The agency did not number the claims in its decision, but we do so here

for purposes of clarification.