01985676
11-09-2000
Ella M. McCutcheon, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ella M. McCutcheon v. Department of the Army
01985676
November 9, 2000
.
Ella M. McCutcheon,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01985676
Agency No. AQFDFO980510170
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated June 17, 1998, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency's decision characterized complainant's April 2, 1998 complaint
as alleging that she was subjected to discrimination on the bases of race
(Black), sex (Female), and in reprisal for prior EEO activity when:
Complainant discovered on January 29, 1998, that she was not placed on
the referral list for the position of Computer Specialist, GS-0334-9/12
(Job Announcement K97005);
On January 19, 1998 complainant became aware that she was not placed on a
referral list, although she qualified as a Computer Operator, GS-0332-09
(Job Announcement K97067);
Since December 22, 1996 complainant applied for 22 positions and received
ratings on 12, but was not placed on any referral lists; and
Complainant was inconsistently rated for Logistics Management Specialists
positions, GS-0346, under Job Announcement T-195-96 (applied for on
December 23, 1996), as a GS-11, and Job Announcements K97004, K97007,
and K97008 (applied for on July 1, 1997), as a GS-09, even though the
job announcements were basically written the same.
Complainant also alleged that she was discriminated against on the bases
of race, sex, reprisal, and prior military status when:
In December 1997 or January 1998 complainant was not selected for the
position of Computer Specialist, GS-0334-9/12 (Job Announcement K97005),
which was filled by a white ex-enlisted male. Complainant was later
informed on February 18, 1998, by Personnel Management Specialist A,
that she was not selected for any jobs because she served as an officer
while on active duty and that ex-enlisted soldiers are more likely to
be selected for jobs.
The agency's decision dismissed claims (1) through (5) as moot, and,
alternatively, dismissed all but two applications mentioned in claim (3)
and all of claim (4) for untimely EEO Counselor contact. Additionally,
the agency dismissed a portion of claim (5) for failure to state a claim.
Specifically, for claims (1) through (5), the agency determined that
on May 20, 1998, complainant informed the EEO office that she had
accepted a job offer on May 7, 1998, for the position of Computer
Operator, GS-0332-9, vacancy announcement K97067, and that the job
acceptance rendered the claims moot because they concerned the same
position or they were at the same grade as the job announcements for
which she was not referred or inconsistently rated. For claims (3)
and (4) (with the exception of Job Announcements K97005 and K97067),
the agency found that complainant's February 25, 1998 EEO Counselor
contact was more than forty-five days beyond the dates of the claimed
discriminatory actions, and was therefore untimely. Finally, for claim
(5), the agency determined that prior status as a military officer was
not a basis for filing a complaint under Title VII.
On appeal, complainant asserts that she was discriminated against
regardless of whether or not she accepted a �tentative� job offer after
filing her EEO complaint, and that her �employment was delayed because
I had not been given an equal opportunity.� Complainant also asserts
that her first contact with the EEO office was on �29 January 1998 not
25 February 1998,� and that the January 29, 1998 date was written on
her intake sheet. Additionally, complainant contends that she first
discovered that she �was not being placed on referral on 20 January
1998,� when she �received a copy of an electronic mail� from Employee A.
We note that the record contains a copy of an EEO �intake sheet� listing
complainant's date of EEO contact as January 29, 1998, as well as a June
17, 1998 letter from the agency also stating her initial contact with
the EEO office as January 29, 1998. In addition, the record shows a
January 20, 1998 electronic mail from Employee A informing complainant
that she had not been referred for any position and of her GS-9 ratings
for Job Announcements K97004, K97007, and K97008. Two other documents
in the record, dated December 30, 1997 and January 20, 1998, also inform
complainant of the status of her applications and the dates she was
rated for the GS-0346 positions.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant'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.
After reviewing complainant's complaint, we find that the agency
improperly dismissed complainant's claims as moot. Although the agency
asserts that complainant accepted a position comparable to those for
which she was not referred or inconsistently rated, it has failed to show
that circumstances render complainant's claim moot. Even if the agency
correctly determined that complainant was hired at an equivalent position
to those for which complainant asserts discrimination, it does not remedy
her loss of pay prior to her acceptance of the position. If complainant
were to prevail on her claim that her employment was delayed because of
discrimination, as remedial relief, she would be entitled to back pay
retroactive to the date of the claimed discrimination. Based on the
foregoing, we find that events have not eradicated the effects of the
claimed discrimination, and that the agency erred in dismissing claims
(1) through (5) pursuant to 29 C.F.R. � 1614.107(a)(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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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 Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when the individual shows
that he was not notified of the time limits and was not otherwise aware
of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he 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.
With regard to claims (3) and (4), we find that the agency improperly
dismissed complainant's claims for untimely EEO Counselor contact. First,
as an initial matter, we find that although the agency's decision states
complainant's date of initial EEO contact as February 25, 1998, the record
clearly shows that complainant's initial contact was on January 29, 1998.
For claim (3), we also find that complainant has provided sufficient
justification for the extension of the relevant time for initiating EEO
Counselor contact. Complainant indicates in her appeal, and the record
supports, that she did not become aware of the fact that she had not
been placed on any referral lists until she received an electronic mail
with that information on January 20, 1998. As the agency has provided
no evidence rebutting complainant's argument, and complainant's January
29, 1998 initial EEO Counselor contact occurred within forty-five days
of when she learned that she had not been placed on any referral lists,
we find that the agency's dismissal of claim (3) was improper.
Regarding claim (4), the agency's decision appears to use the dates
complainant applied for Logistics Management Specialists positions
(December 23, 1996 and July 1, 1997), and not the date complainant had
reason to suspect discrimination concerning her ratings, as the trigger
for the forty-five day limitation period. As such, the agency decision
provides no information or argument to indicate when complainant's ratings
actually occurred or when they were communicated to her. Although the
record contains documents showing the dates complainant was rated
and her ratings for each position, those documents also indicate that
complainant received her rating information no earlier than December 30,
1997, or within forty-five days of her initial EEO contact. Consequently,
we find that the agency improperly dismissed claim (4) for untimely EEO
Counselor contact.
Finally, we find that the agency has properly dismissed the portion of
complainant's claim (5) based on her prior status as a military officer.
Prior status as a military officer is not a recognized basis for a
discrimination complaint under EEOC Regulations. See 29 C.F.R. � 1614.103.
However, as complainant's claim (5) also claims discrimination based on
race, sex, and reprisal, which are cognizable bases for a discrimination
complaint, complainant's claim (5) should continue to be processed using
those bases of discrimination.
Accordingly, the agency's decision to dismiss the portion of claim (5)
based on complainant's prior status as a military officer is AFFIRMED.
The agency's decision to dismiss claims (1) through (4) and the remainder
of claim (5) is REVERSED. Claims (1) through (4) and the portion of
claim (5) claiming race, sex, and reprisal as bases of discrimination
are REMANDED to the agency for further processing in accordance with
this decision and the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 9, 2000
__________________
Date