01995353
08-29-2000
Barbara Kendra, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Barbara Kendra v. Department of Veterans Affairs
01995353
August 29, 2000
Barbara Kendra, )
Complainant, )
) Appeal No. 01995353
v. ) Agency No. 970916
)
Hershel W. Gober, )
Acting Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Barbara Kendra (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the basis of physical disability (loss of joints in feet)
when:
her March 1995 performance evaluation was lowered from �Outstanding�
to �Fully;�<2>
she was required to perform Supply Technician duties in or about March
1995;
she was denied light duty between July 1995 and November 1995;
she was harassed by her supervisor on January 23, 1997 when he
questioned her in a DDTC staff meeting about computer listings;
she was harassed by her supervisor on February 13, 1997 when she asked
him about timecards for leave she was owed and he replied, �Why don't
you file an EEO on Fiscal like you do me?�; and
her working conditions were changed on July 9, 1996 due to a transfer to
Outpatient DDTC, again denying her requested reasonable accommodation.
The record reveals that during the relevant time, complainant was
employed as a Program Secretary at the agency's West Side Health
Care System in Chicago, Illinois. Believing she was a victim of
discrimination, complainant sought EEO counseling and subsequently filed
a formal complaint on February 21, 1997, raising claim nos. 4-6. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or, alternatively,
to receive a final decision by the agency. Complainant requested a
hearing and her case was assigned to an Administrative Judge (AJ).
After reviewing complainant's prehearing filings, the AJ determined
that complainant requested to broaden her complaint to include other
discriminatory acts, i.e., claim nos. 1-3. The AJ therefore remanded
the complaint to the agency on March 4, 1998, noting that the record did
not indicate whether complainant sought EEO counseling on these issues
and did not include an investigation into these issues.
On March 19, 1998, the agency asked complainant to contact an EEO
counselor and discuss claim nos. 1-3. While complainant's communication
with the EEO office was occurring, she accepted disability retirement
on April 3, 1998.
On May 20, 1998, the agency issued a FAD, dismissing claim nos. 1-3
under 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(2)) for failure to initiate contact
with an EEO Counselor within the required time period. The agency
also dismissed claim nos. 4-6 pursuant to 29 C.F.R. � 1614.107(a)(5),
concluding that complainant's April 3, 1998 retirement rendered her
claims moot. In so finding, the agency noted that complainant did not
request compensatory damages.
CONTENTIONS ON APPEAL
On appeal, complainant raises a number of contentions, including three
key points. First, she notes that when she mentioned claim nos. 1-3 in
her prehearing statements, she merely intended to show how her working
conditions deteriorated, rather than to request that her complaint be
broadened. Second, she notes that the agency's failure to accommodate
her disability led to the worsening of her conditions, such that she
finally was forced to accept disability retirement. Third, she notes that
absent discrimination, she intended to work three more years so that she
could receive a 20 year pension, and requests compensation for this loss.
In response, the agency reiterates that complainant's April 3, 1998
retirement renders her complaint moot in that she only requested equitable
relief, not compensatory damages.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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). "The time
period is triggered as soon as a complainant suspects discrimination
and the complainant may not wait until all supporting facts have become
apparent." Whalen v. Department of Justice, EEOC Request No. 05960147
(September 18, 1997).
In the case at hand, complainant initiated counseling on December 31,
1996, well beyond the 45-day time requirement for claim nos. 1-3, which
occurred between March 1995 and November 1995. 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.
Here, complainant has not made any such showing. Moreover, complainant
appears to have never raised claim nos. 1 and 3 with an EEO counselor,
even beyond the 45 day time limit. Nor did complainant allege that claim
nos. 1-3 should be accepted under a theory of continuing violation.
In fact, on appeal complainant clarifies that she raised these issues
as background evidence, to show the deterioration of her working
conditions. The agency's dismissal of these claims is therefore AFFIRMED.
We note however, that these untimely claims must still be considered as
background evidence in the processing of claim nos. 4-6, discussed below.
See Ferguson v. Department of Justice, EEOC Request No. 05970792 (March
30, 1999).
Turning to claim nos. 4-6, EEOC regulation 29 C.F.R. � 1614.107(a)(5)
provides for the dismissal of a complaint, or portions thereof, when the
issues raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the fact finder 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 agency argues that complainant's claim is moot because her
retirement rendered impossible the recurrence of the alleged violations
and eradicated the effects of any discrimination. In support of this
argument, the agency notes that complainant did not request compensatory
damages. After a thorough review of the file, however, we find that
complainant's retirement did not completely and irrevocably eradicate
the effects of the alleged discrimination.
First, in her initial appeal statement, complainant requests compensatory
damages. Complainant notes that �she was put through so much traumatic
stress� based on the agency's failure to accommodate her disability and
other discriminatory actions, that she �ended up in the hospital.� The
Commission has held that a complainant need not use legal terms of art
such as �compensatory damages,� but may use other words or phrases that
put the agency on notice that the relevant pecuniary or non-pecuniary
loss has been incurred. See Roubachewsky v. Department of the Navy, EEOC
Request No 05960194 (January 6, 1997); Haynes v. United States Postal
Service, EEOC Request No. 05920891 (December 14, 1993). In addition,
complainant spells out her request for compensation for �pain, suffering
and physical and emotional trauma� as well as for medical costs, in
her response to the agency's statement on appeal. The Commission has
held that even if, as here, complainant raises compensatory damages for
the first time on appeal, a complaint is not moot due to the potential
availability of damages. See Roubachewsky; see also Kyriazi v. Department
of Defense, EEOC Request No. 05930086 (March 4, 1994).
Moreover, if complainant establishes that she was wrongly denied
reasonable accommodation, she will be entitled to relief that would
place her in the position she would have been in had no discrimination
occurred. Complainant alleges that if she had been accommodated, she
would have remained at her job for 3 more years in order to receive
a 20 year pension. Thus, if complainant establishes discrimination,
she may be entitled to back pay. It cannot be said, therefore, that
her retirement completely and irrevocably eradicated the effects of the
alleged discrimination.
Accordingly, the agency's dismissal of claim nos. 1-3 was proper and
is AFFIRMED. The agency's dismissal of claim nos. 4-6 as moot<3> was
improper and is REVERSED. Claim nos. 4-6 are REMANDED in accordance
with the following order and applicable regulations.
Finally, we note that complainant contends on appeal that she was
forced to accept disability retirement because of the agency's refusal
to accommodate her disability. The record reveals that at the time
of her retirement, complainant had worked at the agency for 17 years.
Complainant contends that if her disability had been accommodated, she
would have worked 3 more years in order to receive a 20 year pension.
The agency does not respond to this contention. As this claim is clearly
related to the issue of whether complainant was denied a reasonable
accommodation, it shall be consolidated with claim nos. 4-6 on remand.
ORDER
The complaint--including claim nos. 4-6 and the forced retirement
claim--is remanded to the Hearings Unit of the Chicago District Office
for scheduling of a hearing in an expeditious manner. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings Unit
within fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with 29 C.F.R.� 1614.109 and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110.
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 (R0400)
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:
August 29, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
1 On 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.
2 A review of the record indicates that complainant intended to allege
that she had received an evaluation of �Outstanding� in the prior
evaluation period and received the lower evaluation in March 1995.
3 While complainant's claim that she was denied reasonable accommodation
in July 1996 may appear to have been untimely raised, the Commission has
held that a failure to provide a reasonable accommodation may constitute
a recurring violation, that is, a violation that recurs anew each day
that the employer fails to provide the accommodation. See Mitchell
v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994).
Hence, complainant's December 31, 1996 counselor contact was timely.