Mary L. Mason, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01990337 (E.E.O.C. Feb. 10, 2000)

01990337

02-10-2000

Mary L. Mason, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.


Mary L. Mason, )

Complainant, )

)

v. ) Appeal No. 01990337

) Agency No. FDA-R-054-98

Donna E. Shalala, )

Secretary, )

Department of Health and Human )

Services, )

(Food and Drug Administration), )

Agency. )

____________________________________)

DECISION

Based on a review of the record, the Commission finds that the agency

improperly dismissed complainant's complaint for failure to state a

claim.<1> See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to and

to be codified as 29 C.F.R. � 1614.107(a)(1)). The agency has offered

no new contentions in response to complainant's October 7, 1998 appeal

from the agency's September 2, 1998 final decision (FAD) to persuade us

to the contrary.<2>

We find the FAD erred in dismissing complainant's complaint filed on July

7, 1998, identified by the agency as consisting of claims (1) through

(11), even if, individually, they may not have set forth a cognizable

claim. We find, from a fair reading of the record and complainant's

complaint, that complainant has alleged harassment based on reprisal.<3>

See the Commission's Guidance on Investigating, Analyzing Retaliation

Claims, Compliance Manual Section 8, Directives Transmittal No. 915.003

(May 20, 1998).

Therefore, we find the agency improperly treated complainant's complaint

in piecemeal fashion. See Drake v. Department of the Air Force, EEOC

Request No. 05970689 (March 29, 1999); Tilden v. Department of the

Army, EEOC Appeal No. 01976352 (July 2, 1998); Meaney v. Department of

the Treasury, EEOC Request No. 05940169 (November 3, 1994). See also

the Commission's revised Management Directive for 29 C.F.R. Part 1614

(EEO-MD-110) (November 9, 1999), Ch. 5, � III (Agencies Must Avoid

Fragmenting EEO Complaints).

Finally, we note that the agency dismissed on the grounds of mootness

one of complainant's claims relating to being assigned a responsibility

that was the duty of a Supervisory Investigator. The record, however,

reflects that as a remedy, complainant requested compensatory damages. We

find that this claim has not been rendered moot because, at a minimum,

the agency failed to address the claim for compensatory damages.

See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).

In summary, the FAD is hereby REVERSED and complainant's complaint is

hereby REMANDED for further processing consistent with the Commission's

decision and applicable regulations. The parties are advised that this

decision is not a decision on the merits of complainant's complaint.<4>

The agency shall comply with the Commission's ORDER set forth 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

(R1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

February 10, 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 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.

2On appeal, complainant averred that she received the FAD on September

11, 1998. In the absence of evidence to the contrary, we accept her

appeal as timely. See 64 Fed. Reg. 37,659 (1999) (hereinafter referred

to and to be codified as 29 C.F.R. � 1614.402(a)).

3See Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq.; and 29 C.F.R. �1614.101(b).

4We note that, as part of the relief sought, complainant requested

punitive damages. However, Federal employees may not recover punitive

damages. See Jones v. Department of Health and Human Services, EEOC

Request No. 05940377 (January 23, 1995).