01991560-3253-5577
05-31-2000
Mona L. Dogans, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Mona L. Dogans, )
Complainant, )
)
v. ) Appeal No. 01991560
) 01993253
Andrew M. Cuomo, ) 01995577
Secretary, ) Agency No. FW-91-23R
Department of Housing and Urban ) FW-95-07
Development, ) FW-99-01
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely filed appeals with this Commission from the final
agency decisions in the cases listed above. These cases pertained to
her complaints of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> The appeals are accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
BACKGROUND
FW-91-23R
In agency complaint number FW-91-23R, filed April 4, 1991, complainant
alleged discrimination on the bases of race (Black), sex (female), and
reprisal (prior EEO activity) when she was accused by her supervisor
of falsifying leave. She also said that �management is constantly
finding ways and people to harass me.� The agency proposed to reject
the complaint on October 1, 1991, asserting that complainant failed to
state how the accusation caused her harm. Complainant responded that
she believed that her supervisor would use it against her in the future,
as he had with other employees. Since this response still failed to
show harm and constituted filing a complaint on a futuristic occurrence,
the agency dismissed the complaint in a Final Agency Decision (FAD-1),
dated January 23, 1992, for failure to state a claim. Complainant
appealed FAD-1 to the Commission. In Dogans v. Department of Housing
and Urban Development, EEOC Request No. 05920706 (February 11, 1993),
the Commission agreed that complainant's claim about her supervisor
failed to state a claim, but also ordered the agency to have an EEO
Counselor provide complainant with counseling on the claim that she
was harassed by management. The agency's EEO Division (EEOD) directed
complainant by letter, dated March 24, 1993, to seek counseling on her
claim of harassment. She was informed that if she failed to do so within
fifteen days, her complaint would be dismissed for failure to prosecute.
Complainant submitted a complaint form to the agency, dated April 5,
1993, showing that she had worked with EEO Counselor, EC-1, in filing
that complaint form. She states that she never received a copy of the
Counselor's Report from when she was counseled by EC-1. Upon receipt of
the request for the EEO Counselor's Report, EC-1 advised that he had not
counseled complainant on the remanded issue, but on a subsequent claim
of discrimination involving a non-selection (Agency Complaint Number
FW-93-20; FAD issued May 31, 1996). The agency could not locate the
Counselor's Report itself. In a letter dated December 14, 1993, EEOD
informed complainant of EC-1's letter, and directed complainant to contact
an active counselor for the required counseling. Complainant was again
advised that her complaint would be dismissed if she failed to contact a
counselor regarding her claim of harassment. According to the agency,
complainant did not contact another counselor regarding her claim of
harassment. The agency, therefore, dismissed complainant's claim of
harassment for failure to prosecute in a Final Agency Decision (FAD-2)
dated November 16, 1998. The agency did not explain why it waited
nearly five years to issue FAD-2. Complainant then appealed FAD-2 to
the Commission (EEOC Appeal No. 01991560). According to complainant,
she did speak with another EEO Counselor, EC-2, and explained to her
that her complaint was remanded back to the agency in order to deal with
the harassment issue. She produced evidence that she spoke with EC-2 on
December 22, 1993 in the form of a �Notice of a Right to File a Formal
Complaint,� dated January 26, 1994 and signed by EC-2, which told her
that she could file a formal complaint on the �matter� that she first
brought to EC-2's attention on December 22, 1993. The letter does not
specify what �matter� they spoke about. Complainant asserts that she
never received a Counselor's Report from that counseling session either.
FW-95-07
In agency complaint number FW-95-07, dated October 12, 1994, complainant
alleged discrimination on the bases of race (Black), sex (female),
non-sexual harassment, and retaliation (prior EEO activity) when
management recalled her from the United Way Loaned Executive Training
which was scheduled for September 6, 1994 through September 12, 1994.
Management advised her that she did not have approval to attend from
agency headquarters. When management notified complainant, on September
13, 1994, that she could return to training, it had already ended.
As part of her remedy, complainant requested $450,000 for the loss of
enjoyment of life. By letter dated September 12, 1995, the Director of
the agency's EEO Division, D-1, advised that when compensatory damages are
claimed, complainant must provide objective evidence of costs incurred,
and a linkage to the alleged discriminatory actions management allegedly
took. Complainant replied on October 1, 1995, questioning why she had to
provide such information at the time. D-1 responded, in a letter dated
December 12, 1995, that complainant must provide the requested evidence
within fifteen calendar days. Complainant did not provide the requested
information within the time period. In its Final Agency Decision
(FAD-3), dated February 9, 1999, the agency dismissed complainant's
complaint as moot because management sent her back to training in 1994
and for failure to prosecute because she did not respond to the request
for information about compensatory damages. Complainant then appealed
FAD-3 to the Commission (EEOC Appeal No. 01993253). Complainant argued
on appeal that she was willing to provide information about compensatory
damages to an EEO Investigator, but not to the Director of the agency's
EEO Office. Complainant implied in her statement on appeal that she
regarded the Director as part of the agency and did not feel she should
have to provide the information about compensatory damages to the agency.
She said that she would have been willing to provide information about
compensatory damages to the EEOC or the Courts. She viewed the EEO
Investigator as part of the EEOC.
FW-99-01
In agency complaint number FW-99-01, dated October 6, 1998, complainant
alleged discrimination on the bases of race (Black), color (medium
complexion), religion (Catholic), sex (female), physical disability
(severe allergies/sinus), and reprisal (prior EEO activity) when
she was reassigned to the position of Project Manager, Multifamily
Housing Division. Complainant felt this act was discriminatory because
others, not of her protected classes, were reassigned to positions with
promotion potential, while she was not. The agency issued its Final
Agency Decision (FAD-4) on May 20, 1999, finding that she did not state
a claim. Complainant then appealed FAD-4 to the Commission (EEOC Appeal
No. 01995577).
ANALYSIS AND FINDINGS
FW-91-23R
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R.
� 1614.107(a)(7)) requires an agency to dismiss a complaint or a portion
of a complaint for failure to cooperate, or alternatively, to adjudicate
the complaint if sufficient information for that purpose is available. The
regulation is applicable under the following circumstances: (1) the
agency has provided the complainant with a written request to provide
relevant information or to otherwise proceed with the complaint; (2)
the request included a notice of the proposed dismissal for failure to
respond within 15 days of receipt of the request; and (3) the complainant
either fails to respond to the request within 15 days of receipt or
the complainant's response does not address the agency's request. The
Commission has held that the regulation is applicable, however, only
in cases where there is a clear record of delay or contumacious conduct
by the complainant. See Anderson v. United States Postal Service, EEOC
Request No. 05940850 (February 24, 1995).
We disagree with the agency that complainant's harassment claim (Agency
No. FW-91-23R) should be dismissed for failure to prosecute. Contrary to
the agency's assertion that complainant did not seek counseling on her
harassment claim after she was sent the December 14, 1993 letter asking
her to do so, complainant has provided evidence that she did receive
counseling on December 22, 1993, within the fifteen day time period.
The agency has not provided evidence to disprove complainant's assertion
that she brought the harassment claim to EC-2's attention at that meeting.
We find, therefore, that EEOC Regulation 29 C.F.R. � 1614.107(a)(7)
is not applicable to the claim at hand because there is no clear record
of delay or contumacious conduct by complainant. The agency should not
have dismissed her claim for failure to prosecute.
FW-95-07
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R.
� 1614.107(a)(5)) provides that the agency shall dismiss a complaint
or a portion of a complaint that is moot. The issues raised in a
complaint of discrimination are no longer in dispute: (1) if it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur; and (2) if interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. See County of Los Angeles v. Davis, 440 U.S. 625 (1979).
EEOC Regulation 29 C.F.R. �1614.107(a)(7), a dismissal for failure
to prosecute, applies only to requests for relevant information. The
Commission has long held that, as a general rule, an agency should not
dismiss a complaint where it has sufficient information on which to base
an adjudication. See Ross v. United States Postal Service, EEOC Request
No. 05900693 (August 17, 1990). The Commission specifically has found that
the regulation is not applicable where there is sufficient information in
the record to determine whether to accept the complaint's claims without
any further input from complainant. Breese v. Department of the Army,
EEOC Request No. 05940800 (May 25, 1995); Hart v. Department of Veterans
Affairs, EEOC Request No. 05930591 (December 23, 1993).
We disagree with the agency's decision to dismiss complainant's claim for
mootness and for failure to prosecute. Complainant's claim is not moot
because the agency has not demonstrated that interim relief or events
have eradicated the effects of the alleged violation. Complainant never
received the training that management recalled her from. She was told
that she could return to the training on September 13, 1994, but by that
time the training was already over. She was offered the training again
in 1995, but complainant could not attend because it interfered with
her scheduled college courses. Since complainant's claim is not moot
because she never attended the training, it can not be dismissed for
failure to prosecute because the agency's request for objective evidence
of compensatory damages was not necessary to the determination of whether
to accept complainant's claim. We find, therefore, that the agency should
not have dismissed complainant's claim under 29 C.F.R. �1614.107(a)(5)
and 29 C.F.R. �1614.107(a)(7).
FW-99-01
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R.
� 1614.107(a)(1)) provides, in relevant part, that an agency shall dismiss
a complaint, or portion thereof, that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or disabling condition. 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.103));
� 1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 22, 1994).
Complainant asserts that the position that she was reassigned to did not
have promotion potential. Complainant's claim does, in fact, allege
a harm with respect to a term, condition, or privilege of employment
for which there is a remedy. Therefore, the Commission finds that
complainant states a claim and that FAD-4 improperly dismissed her
complaint in agency case no. FW-99-01.
CONCLUSION
Accordingly, the decisions of the agency in the three cases discussed
above are REVERSED and REMANDED for further processing in accordance
with this decision and the proper regulations.
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 (M0300)
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); 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 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:
05-31-00
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.