01990555
03-01-2000
Catherine Gooden, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Catherine Gooden v. Department of Veterans Affairs
01990555
March 1, 2000
Catherine Gooden, )
Complainant, )
)
v. )
) Appeal No. 01990555
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
____________________________________)
DECISION
On October 20, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated September 11,
1998, dismissing her complaint for failure to state a claim, untimely
counselor contact, and mootness.<1> The Commission accepts the appeal
in accordance with EEO Order No. 960, as amended.
On September 2, 1997, complainant contacted the EEO office regarding
claims of discrimination based on race, age, and disability. Informal
efforts to resolve complainant's concerns were unsuccessful. Accordingly,
complainant filed a formal complaint dated October 7, 1997.
The agency defined the claims as follows:
failure to hire - August 27, 1997
failure to reinstate - October 17, 1995
termination / removal - September 4, 1993
demotion - December 21, 1989
retirement - January 1992 and September 16, 1996
6) working conditions - September 2, 1997
The agency issued a FAD dismissing claim 1 for failure to state a claim.
Claims 2, 3, 4, and 5 were dismissed for untimely counselor contact.
Claim 6 was dismissed as moot.
Specifically, the FAD indicated that there was no evidence that
complainant applied for a position or reinstatement at the time
referenced in claim 1. Regarding the untimely EEO Counselor contact
claims, the agency stated that complainant contacted an EEO counselor
almost two years after the most recent incident (claim 5 - September
1996). Regarding claim 6, the agency determined that complainant's
termination was effective on September 4, 1993. The agency therefore
concluded that the claim regarding " working conditions - September 2,
1997" was rendered moot.
Claim 1
EEOC Regulation 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified
at 29 C.F.R. �1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or
loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
In the instant case, the agency dismissed claim 1 for failure to state
a claim, stating that complainant had not applied for a position or
reinstatement during the alleged time period. The record does not
contain evidence suggesting that complainant filed an application during
August 1997. Therefore, the agency's dismissal of claim 1 was proper
and is AFFIRMED.
Claims 2, 3, 4, and 5
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.
Here, appellant contacted the EEO counselor on September 2, 1997.
The alleged claims occurred on September 16, 1996 (claim 5), October
17, 1995 (claim 2), September 4, 1993 (claim 3), and December 21,
1989 (claim 4). Therefore, complainant's contact was well beyond the
forty-five day time limitation. The agency issued a letter, dated October
28, 1997, requesting an explanation for complainant's untimeliness.
The letter also notified complainant that failure to respond within
fifteen calendar days could result in the dismissal of her complaint.
The record reveals that appellant received the letter on October 30,
1997 but did not respond until December 2, 1997. Moreover, complainant
failed to provide the requested information. On appeal, complainant
does not contend that she was unaware of the time limitation or did not
reasonably suspect discrimination at the time of the alleged events.
Therefore, the Commission does not find sufficient reason for extending
the time limitation. Accordingly, the dismissal of claims 2, 3, 4,
and 5 was proper and is AFFIRMED
Claim 6
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at
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 appellant'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 FAD dismissed claim 6 on the grounds of mootness, contending that
since complainant is no longer employed by the agency there is no
reasonable expectation that the alleged violation will recur. Further,
the agency stated that no pay or benefits were lost as a result of the
claim, and therefore complainant no longer has any relief available to
her. The Commission finds the agency's reasoning to be faulty on several
grounds. First, complainant has alleged a harm concerning a term of her
employment, namely her working conditions. The Commission does not find
that her termination from that employment to be an intervening event that
completely eradicated the effects of the alleged discrimination. Second,
a review of the record reveals that although complainant has raised the
issue of compensatory damages, the agency failed to address this issue
prior to rendering its final decision. The Commission has held that the
agency must address the issue of compensatory damages when the complainant
shows objective evidence that she has incurred compensatory damages and
that the damages are related to the alleged unlawful discrimination.
See Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (November
12, 1992); request for reconsideration denied, EEOC Request No. 05930306
(February 11, 1993). Therefore, we find that once complainant raised
the issue of compensatory damages, the agency should have requested
the appellant provide objective evidence of the alleged damages and
how those damages were linked to the alleged discrimination before it
dismissed claim 6 as moot. The FAD should have addressed the issue of
compensatory damages. Third, it appears that the agency is attempting
to dismiss claim 6 as moot based on an event (complainant's termination,
that)occurred prior to the alleged discriminatory event. Further, we
note that though complainant has not been employed by the agency since
1993, we make no determination regarding whether the matter addressed
in claim 6 was timely raised with an EEO Counselor.. Accordingly,
the agency's dismissal of claim 6 was improper and is REVERSED.
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of claims 1, 2, 3, 4, and 5; REVERSES the agency's dismissal
of claim 6; and REMANDS claim 6 to the agency for processing as ORDERED
below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims 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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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:
March 1, 2000
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________ _____________________________
Date Equal Employment Assistant
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.