Mona L. Dogans, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01991560-3253-5577 (E.E.O.C. May. 31, 2000)

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.