Doreath D. Patterson, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 30, 2000
01992307 (E.E.O.C. May. 30, 2000)

01992307

05-30-2000

Doreath D. Patterson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Doreath D. Patterson, )

Complainant, )

)

v. ) Appeal No. 01992307

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's January 8, 1999 decision dismissing

the complaint on the basis of untimely EEO counselor contact and failure

to state a claim is proper, in part, pursuant to the provisions of 64

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

to as 29 C.F.R. �1614.107(a)(2)).<1>

The record shows that Complainant sought EEO counseling on October 13,

1998, claiming that she had been discriminated against on the basis

of reprisal when she was subject to harassment, specifically when her

records were not in order to be released for her 401K plan, her step

increase and back pay.

Subsequently, Complainant filed a formal complaint claiming that she

had been discriminated against on the basis of reprisal when from July

24, 1996 to the present when: (1) her former supervisor failed to file

an accident report on July 24, 1996; (2) the agency owed her back pay

in overnight differential and retroactive step increase from March 12,

1997 to November 1997; (3) she had not received Thrift Savings Plan (TSP)

money in November 1998; (4) she was placed on Leave without Pay (LWOP)

status from April 16, 1997 to August 28, 1997, while she was working; and,

(5) she did not receive a monetary award in November or December 1997,

for her highly successful performance evaluation.

The agency issued a final decision dismissing the entire complaint.

Claims (1), (2), (4), and (5) were dismissed on the grounds of untimely

EEO Counselor contact. Concerning claims (1) and (2), the agency found

that although Complainant had brought these issues �to the attention of

the EEO Manager at [her] station when they occurred or soon thereafter�,

she did not pursue these matters. Moreover, concerning claims (1), (2),

(4), and (5), the agency also found that Complainant �delayed seeking

EEO counseling on these issues because [she] had brought these issues

to the attention of the Union but that the Union did not satisfactorily

resolve them�. Concerning claim (3) the agency, after finding that it

did not have jurisdiction over a Thrift Savings account issue, and that

Complainant had not been aggrieved, dismissed this claim for failure

to state a claim.

On appeal, Complainant argues that she finally received the retirement

and TSP papers from the EEO counselor �which she (Complainant) immediately

mailed off and have already received the TSP monies�. Complainant further

contends that the issue is not whether she received her TSP money or

not but the fact that the agency delayed her documentation because no

one at the agency wanted to �touch them (the documents)� because they

allegedly thought Complainant would file a civil action.

In response to the appeal, the agency argues that because Complainant

received the money from her Thrift Savings Plan, claim (3) is also moot.

We find that claims (1), and (2) were properly dismissed on the basis

of untimely EEO counselor contact. We have previously held that first

contact with an EEO Counselor does not count as initial EEO counselor

contact for timeliness purposes where the complainant seeks counseling,

withdraws and then re-initiates contact on the same matter months later.

Juarez v. Department of the Air Force, EEOC Request No. 05976151 (June

3, 1998). The record shows that after an alleged initial meeting with the

EEO Director �at the time of the incidents or soon thereafter� concerning

the issues raised in claims (1) (occurring on July 24, 1996) and (2)(

occurring from May to November 1997), Complainant did not pursue these

issues until she once again sought EEO counseling on October 13, 1998.

Under these circumstances, Complainant is unable to successfully claim

that she contacted an EEO counselor in a timely manner.

We also find that claims (4) and (5) were properly dismissed on the

grounds of untimely EEO counselor contact. Complainant claims that

she delayed seeking EEO counseling because she sought the assistance of

her Union. The Commission has specifically held that internal efforts or

appeals of an agency's adverse action and/or the filing of a grievance

do not toll the running of the time limit to contact an EEO counselor.

See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038

(June 9, 1989).

Concerning claim (3) we find that the agency improperly dismissed this

claim for failure to state a claim. We also find that this issue has not

been rendered moor, as the agency contends on appeal. The agency found

that Complainant was simply claiming that she had not received her TSP

contributions. However, on appeal, Complainant states that her claim

addresses the agency's lack of action to process her TSP money as well

as its failure to prepare and mail to her the appropriate documentation.

She further claims that as a result of the agency's failures her credit

was destroyed, her savings were gone, she had no income and this ruined

her life and her health. We find that her TSP claim could concern the

terms, conditions, or privileges of Complainant's employment: this is

enough to state a claim under EEOC Regulations.

EEOC Regulations provide that an agency shall dismiss a complaint or

portion of a complaint that is moot. The United States Supreme Court

has held that a discrimination complaint is moot when: (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 violation.

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Under such

circumstances, no relief is available and thus there is no need for a

determination of the rights of the parties. Id. Based on the record,

we find that the record is insufficient to determine that an interim

event (the payment of the TSP monies) has completely and irrevocably

eradicated the effects of the alleged violation.

The dismissal of claims (1), (2), (4), and (5) was proper and is hereby

AFFIRMED. The dismissal of claim (3) was improper and is hereby REVERSED.

Claim (3) is REMANDED for further processing in accordance with this

decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claim (claim 3) 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 claim

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:

May 30, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________

_________________________________

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.