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.