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rescinded the unsuitability determination on April 29, 1996, restored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