0120100268
04-21-2010
Fouaimalo T. Tuala, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Fouaimalo T. Tuala,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100268
Agency No. 096920701805
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated September 23, 2009, dismissing her formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. Complainant filed a formal EEO complaint alleging that she was subjected to unlawful discrimination on the bases of national origin and in reprisal for prior protected activity.
In a partial acceptance/partial dismissal letter dated August 11, 2009, the agency determined that complainant's formal complaint was comprised of the following claims:
1. On January 9, 2009, complainant received a Level 2 performance rating under the National Security Personnel System;
2. On January 15, 2009, complainant was denied the opportunity to work overtime;
3. On February 18, 2009, complainant was denied the opportunity to work overtime;
4. On March 23, 2009, complainant's duties were changed from reviewing and rating applications as a Human Resources Specialist and she was assigned general administrative duties; and
5. Complainant is being forced into retirement from her employment on August 31, 2009.
The agency accepted claim (4) for investigation. However, the agency dismissed the remainder of the claims. The agency dismissed claims (1) - (3) on the grounds of untimely EEO Counselor contact. Specifically, the agency stated that complainant initiated EEO Counselor contact on April 9, 2009, outside of the applicable timeframe. The agency dismissed claim (5) for failure to state a claim. The agency stated that this claim was premature because complainant's retirement was scheduled for August 31, 2009.
In its final decision dated September 23, 2009, the agency dismissed claim (4), complainant's only claim that was previously accepted for investigation. The agency dismissed claim (4) for failure to state a claim. Specifically, the agency stated that complainant retired on August 31, 2009, and that because she was no longer a federal employee, she could no longer perform the duties complained of and that there was no available remedy that could be granted.
On appeal, complainant's asserts that the agency improperly dismissed her formal complaint. Complainant asserts that she has been subjected to ongoing discrimination since she first started as a Human Resources Specialist at HRSC-NW in January 2003. Complainant further asserts that her initial date of EEO Counselor contact is February 18, 2009, when she made a verbal request to her supervisor to meet with an EEO Counselor.
In response, the agency requests that we affirm its final decision dismissing complainant's complaint.
As a threshold matter, the Commission finds that the agency improperly fragmented complainant's complaint in its partial acceptance/partial dismissal letter and in its final decision. A fair reading of the record reflects that complainant is raising a harassment/hostile work environment claim that culminated in her forced retirement/constructive discharge. The matters identified above are incidents comprising complainant's harassment claim.
Dismissal: Failure to State a Claim
The Commission finds that while the agency dismissed incident (4) for failure to state a claim because complainant was no longer a federal employee, we find that this matter is more properly analyzed in terms of whether it has been rendered moot. EEOC Regulation 29 C.F.R.� 1614.107(a)(5) provides that an agency shall dismiss a complaint that is moot. To determine whether the issues raised in the complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) if the interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. When such circumstances exists, no relief is available and no need for a determination of the rights of the parties is presented.
The record reflects that complainant has requested compensatory damages. Where, as here, a complainant requests compensatory damages, the agency had a duty to address the issue of compensatory damages. In this case, the agency did not address the issue of compensatory damages. If complainant were to prevail, the possibility of an award of compensatory damages exists, and complainant's complaint is not moot.
The Commission further finds that the agency improperly dismissed claim (5) for failure to state a claim. In its partial acceptance/partial dismissal letter dated August 11, 2009, the agency found that incident (5) was premature because complainant's retirement was not scheduled until August 31, 2009. However, the agency in its final decision dated September 23, 2009, acknowledges that complainant retired effective August 31, 2009; thus, we find that the proposed retirement (constructive discharge) merged with the actual retirement and that this matter now sets forth an actionable claim.
Dismissal: Untimely EEO Counselor Contact
The agency improperly dismissed incidents (1) - (3) on the grounds of untimely EEO Counselor contact. For purposes of this analysis only, we assume, without finding, that complainant initiated EEO Counselor contact on April 9, 2009, the date set forth by the agency.1 The Commission finds that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that at least one of the incidents comprising complainant's hostile work environment claim (incident (4)) occurred within the 45-day time period preceding complainant's EEO Counselor contact. Based on the foregoing, we find that the agency improperly dismissed claims (1) - (3) on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the agency's final decision dismissing complainant's complaint and we REMAND this matter to the agency for further processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 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 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 (K1208)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960, Washington, DC 20013. 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 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 (R0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 21, 2010
Date
1 Complainant asserted that she first contacted an EEO Counselor on February 18, 2009.
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0120100268
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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