Linda Woellert, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 30, 1999
01972402 (E.E.O.C. Apr. 30, 1999)

01972402

04-30-1999

Linda Woellert, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Linda Woellert v. United States Postal Service

01972402

April 30, 1999

Linda Woellert, )

Appellant, )

) Appeal No. 01972402

v. ) Agency No. 4-G-780-1260-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On January 21, 1997, appellant filed a timely appeal of a January 3,

1997 final agency decision which dismissed her complaint for failure

to contact an EEO Counselor in a timely manner and on the alternative

grounds of mootness.

In its final decision, the agency framed the allegation of the November

22, 1996 complaint as whether appellant was discriminated against on

the basis of physical disability (multiple sclerosis) when she was not

hired as a result of being found medically unsuitable. In dismissing

the complaint on the grounds of untimely EEO contact, the agency

noted that the alleged discrimination occurred on November 17, 1995,

and appellant did not initiate Counselor contact until July 18, 1996,

which was beyond the 45-day time period required for timely contact.

The agency also determined that the complaint was moot because the agency

rescinded the unsuitability determination on April 29, 1996, restored

appellant's name to the active register and extended her eligibility.

Upon review, we find that the agency's decision was improper.

Although EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an

aggrieved person initiate contact with an EEO Counselor within 45

days of the date of the matter alleged to be discriminatory, EEOC

Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be

extended under certain circumstances. In addition, EEOC Regulation

29 C.F.R. �1614.604(c) provides that the time limits in Part 1614 are

subject to waiver, estoppel and equitable tolling. In the case at hand,

appellant does not dispute that she did not contact an EEO Counselor

until July 18, 1996, regarding her receipt of a notice on November 17,

1995, informing her that she was medically unsuitable for a position as

a flat sorter machine operator; however, appellant contends on appeal

that she was unaware of her EEO rights. Specifically, in an affidavit

submitted on appeal, appellant states that in July 1996, she called

the Postmaster's office to inquire about when she would be employed

since she had been reinstated. After discussing her claim with the

Postmaster's secretary, the secretary informed appellant that she needed

to contact the EEO Office. Appellant further states that she submitted

her informal complaint on July 18, 1996, the day after she was informed

of her EEO rights. Accordingly, we find that appellant has submitted

justification sufficient to extend the time limit and the agency has not

submitted any argument or evidence which would establish that appellant

had actual or constructive notice of her EEO rights prior to July 1996.

It is well-settled that where, as here, there is an issue of timeliness,

"[a]n agency always bears the burden of obtaining sufficient information

to support a reasoned determination as to timeliness." Williams

v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).

The agency's dismissal of appellant's complaint on the alternative grounds

of mootness was also improper. EEOC Regulation 29 C.F.R. �1614.107(e)

provides that the agency shall dismiss a complaint that is moot.

In her complaint, appellant specifically requested compensatory damages.

The agency failed to address this claim. The Commission has determined

that an agency may not dismiss an EEO complaint on mootness grounds when

there is a claim for compensatory damages because of the potential for

additional relief in the event the complainant were to prevail on the

merits of the complaint. See Pritt v. U.S. Postal Service, EEOC Request

No. 05950792 (July 3, 1997); Jackson v. U.S. Postal Service, EEOC Appeal

No. 01923399 (November 12, 1992), request to reopen denied, EEOC Request

No. 05930306 (February 1, 1993). Accordingly, appellant's complaint has

not been rendered moot because, at a minimum, the agency failed to address

her claim for compensatory damages and should appellant prevail on her

complaint, the possibility of an award of compensatory damages exists.

Consistent with our discussion herein, the agency's final decision is

REVERSED and appellant's complaint is hereby REMANDED to the agency for

further processing in accordance with the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

April 30, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations