01980002
01-19-2000
Dorothy K. Reonas, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Dorothy K. Reonas, )
Complainant, )
)
v. ) Appeal No. 01980002
) Agency No. 97 DCSR23023
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The final agency decision was received by complainant
on August 27, 1997. The appeal was postmarked September 26, 1997.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at and hereinafter referred to as 29 C.F.R. �
1614.402(a)), and is accepted in accordance with EEOC Order No. 960,
as amended.
The record indicates that complainant contacted an EEO counselor on
January 9, 1997 and June 10, 1997 regarding claims of discrimination.
Specifically, on January 9, 1997 complainant alleged that she was
discriminated against when (1) the agency failed to process the forms
relating to her Workman's Compensation claim and on June 10, 1997
complainant alleged that she had been subjected to discrimination when
(2) on September 1, 1996 her work hours were reduced from 24 to 16.
The record indicates that also on June 10, 1997, complainant again
raised discrimination claims regarding the processing of her Workman's
Compensation forms.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on July 2, 1997, complainant timely filed a formal complaint
of discrimination on the basis of physical disability (unspecified).
In a letter dated July 31, 1997, the agency advised complainant that
claim (2) concerning complainant's work hours was not timely brought
to the attention of an EEO Counselor. In considering whether to accept
the claim, the agency instructed complainant to explain in writing, the
reasons for her delay in seeking EEO counseling. On August 6, 1997,
complainant wrote the agency and stated that during her first contact
with the EEO Counselor on January 9, 1997, complainant discussed claim
(2) along with claim (1) concerning the processing of her Workman's
Compensation forms.
On August 25, 1997, the agency issued its final decision dismissing
complainant's complaint on the grounds of untimeliness and mootness.
The FAD determined that claim (1) was moot because the claim forms were
processed on August 1, 1997. Regarding claim (2), the FAD determined
that complainant's June 10, 1997 EEO contact was beyond the forty-five
(45) day time limit required by EEOC Regulations.
The Commission notes that complainant's formal complaint referred only
to claim (2) concerning the September 1, 1996 reduction in work hours,
however, the agency addressed both claims in its final decision and we
accept the agency's framing of complainant's complaint.
The record of the instant case including an EEO Counselor's Report (ECR)
dated July 11, 1997, states that complainant initially sought counseling
on January 9, 1997 when, despite repeated requests, the agency had not
processed complainant's Workman's Compensation forms. Complainant again
sought counseling on June 10, 1997 regarding the agency's reducing her
work hours from 24 to 16. The ECR further indicates that on June 10,
1997 complainant again alleged discrimination regarding the processing
of her Workman's Compensation form.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(5),provides for
the dismissal of a complaint when the issues raised therein are moot.
An claim is moot only if (1) 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. See Henderson v. Department of the Treasury, EEOC Request
No. 05940820 (August 31, 1995)(citing County of Los Angeles v. Davis, 440
U.S. 625 (1979). When such circumstances exist, no relief is available
and no need for a determination of the rights of the parties is presented.
Here, the agency contends that claim (1) is moot because complainant's
claim forms were processed August 1, 1997.
A review of the record indicates that the processing of complainant's
claim forms was delayed because of an oversight by the agency (see agency
letter dated June 26, 1997). We acknowledge that complainant may have
been aggrieved by the agency's delay in processing complainant's claim.
However, the record indicates that the forms required to process
complainant's Workman's Compensation claim were completed and forwarded
to the appropriate office as of August 1, 1997. We find no evidence to
indicate that the alleged violation will recur. We also find that in this
instance, the processing of complainant's claim forms have eradicated the
effects of the alleged violation. Accordingly, the Commission AFFIRMS
the agency's decision that claim (1) is moot. We find that complainant
is no longer aggrieved with respect to the processing of said forms.<2>
EEOC Regulation 29 C.F.R. � 1614.105(a)(1), states that an aggrieved
person must initiate contact with a Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within forty-five (45) days of the effective
date of the action. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter cited as 29 C.F.R. � 1614.107(a)(1) provides that the
agency shall dismiss a complaint or a portion of a complaint that fails
to comply with the applicable time limits contained EEOC Regulations.
In the instant case, complainant first learned in September of 1996 that
her work hours had been reduced from 24 to 16. The ECR indicates that
complainant did not seek counseling on this issue until June 10, 1997.
The FAD contends that complainant's June 10, 1997 contact was beyond the
time limitation provided in 29 C.F.R. � 1614.105(a)(1). Complainant
alleges in her statement on appeal that she in fact sought counseling
on this issue on January 9, 1997. Complainant also states that she was
unaware of the time limitations for seeking EEO counseling. In its
appeal statement, the agency indicates that an EEO poster containing
relevant time limits was posted at complainant's work site. However,
in the instant matter the agency has not supplied a copy of an EEO poster
describing the time deadlines or of an affidavit describing a poster.
Based on the instant record the Commission can not find that complainant
had actual or constructive notice of the time limits for contacting an
EEO Counselor The Commission has held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
In this instance, the agency has not met its burden concerning the issue
of untimeliness. In that regard, the agency's decision to dismiss claim
(2) as untimely is REVERSED. The claim is REMANDED to the agency for
processing in accordance with this decision and applicable regulations.
The agency's decision dismissing claim (1) as moot is AFFIRMED.
The agency's decision dismissing claim (2) as untimely, is REVERSED.
Claim (2) is REMANDED to the agency for processing in accordance with
the Order 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:
January 19, 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.
2 In affirming the agency's decision to dismiss claim (1), we determine
that the record does not reflect that complainant requested compensatory
damages for the matter raised therein.