01974022_r
04-22-1999
Marie B. Cotting, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Marie B. Cotting, )
Appellant, )
)
v. ) Appeal No. 01974022
) Agency No. 95(135)HQ/HR
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
______________________________)
DECISION
Appellant sent a letter to the agency's EEO office dated February 13,
1995, requesting to file a formal complaint of discrimination because,
inter alia, appellant was required to submit a leave slip every time
she took leave although other employees did not have to submit slips,
and appellant was restricted to a thirty (30) minute lunch period.
The letter did not specify a date on which the allegations occurred.
The agency responded with a final agency decision (FAD) dated March 1,
1995, Agency Number 95(61)HQ/HR, which dismissed the allegations raised
on February 13, 1995, because appellant failed to contact a counselor.
The March 1, 1995 FAD, however, provided that if appellant sought
counseling, �the Counselor contact date shall be the date of your
attempted filing. . . .� Appellant subsequently met with a counselor
on March 9, 1995.
On June 19, 1995, appellant filed a formal complaint seeking, inter alia,
compensatory damages and attorney's fees. Appellant alleged that she
was subjected to discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. on the bases
of race (Asian Pacific Islander) and national origin (Guam) when:
Appellant was not selected for a Correspondence Specialist position;
Appellant was rated �fully successful� on her 1994 performance appraisal,
without the benefit of a mid-year review;
Appellant was required to submit a formal leave slip every time she took
leave, and was informed that her lunch breaks would be limited to thirty
(30) minutes;
Appellant's supervisor �consistently� stated that appellant did not
understand assignments; and
Appellant was denied overtime assignments.
In a FAD dated August 24, 1995, the agency accepted allegation (1), and
dismissed the remaining allegations for, inter alia, untimely counselor
contact. Appellant appealed the FAD to the Commission in EEOC Appeal
No. 01956836, but while the appeal was pending, the agency issued an
amended FAD on November 7, 1995, which added the basis of reprisal and
accepted allegation (2). On October 28, 1996, the Commission remanded
allegation (3) in EEOC Appeal No. 01956836 �so that the agency can contact
appellant to clarify the dates of the incidents at issue. . . .�<1>
By letter dated November 7, 1996, the agency requested that appellant
�provide information to clarify the dates of the incidents in [allegation
(3)].� The agency's letter also informed appellant that her failure
to respond within fifteen (15) days could result in dismissal of her
allegation for failure to cooperate. Appellant responded by letter
dated November 25, 1996, and claimed that the thirty (30) minute lunch
restriction was imposed on the day of appellant's first meeting with the
investigator of a prior complaint, Agency Number 94(56)HQ. Further,
appellant claimed that she discussed her lunch and leave restrictions
with the investigator during the course of his inquiry. Appellant
claims that the investigative report was completed on September 1, 1994.
Appellant asserts that the investigator told her that she would not need
to file another complaint on allegation (3), and that the new allegation
would become part of 94(56)HQ.<2>
On April 19, 1997, appellant received a FAD dismissing allegation
(3) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
counselor contact. Specifically, the agency found that appellant
contacted a counselor on March 9, 1995, but that the incident occurred
during August 1994, when appellant met with the investigator of 94(56)HQ.
Alternatively, the agency dismissed the allegation for failure to
cooperate pursuant to EEOC Regulation 29 C.F.R. �1614.107(g), for stating
the same claim already decided in Agency No. 94(56)HQ pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), and/or for mootness pursuant to EEOC
Regulation 29 C.F.R. �1614.107(e) because appellant had recently retired.
On April 21, 1997, appellant appealed the March 20, 1997 FAD to the
Commission. On appeal, appellant argues, through her representative,
that allegation (3) is part of a continuing violation. Appellant claims
that she was denied a full lunch period every work day, and that each day
constituted a separate instance of discrimination. Further, appellant
argues that allegation (3) was not dealt with in a prior complaint, that
appellant cooperated with the agency by responding to their request on
November 26, 1997, and that appellant's complaint is not rendered moot
by her retirement because she did not receive all the relief to which
she is entitled.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same
claim that is pending before or has been decided by the agency or
Commission. However, the record does not contain a copy of the prior
complaint cited by the agency. Accordingly, it is impossible for the
Commission to determine whether or not the allegation raised by appellant
in the present case is, in fact, identical to any previously raised
allegations. Clearly, it is the burden of the agency to have evidence
or proof to support its final decisions. See Marshall v. Department
of Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Accordingly, the
agency's decision to dismiss allegation (3) for stating a claim that
has been decided by the agency is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion of a complaint, where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has stated that "it is only in cases where the
complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be canceled for failure to prosecute/cooperate."
Kroeten v. U.S. Postal Service, EEOC Request No. 05940451 (December 22,
1994) (citation omitted).
Appellant's response to the agency's request for information addressed
the date on which the thirty-minute lunch restrictions occurred, i.e.,
sometime during the investigation of her prior complaint, however her
response did not address the date on which she was required to submit
leave slips. Nonetheless, since appellant did attempt to respond to
the agency's sole request, the Commission finds that appellant did not
engage in delay or contumacious conduct, and the agency's dismissal of
appellant's allegation for failure to prosecute is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
the factfinder must ascertain whether (1) it can be said with assurance
that there is no reasonable expectation that the alleged violation will
recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged discrimination. See County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence
that she has incurred compensatory damages, and that the damages
are related to the alleged discrimination. Jackson v. USPS, EEOC
Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). Should appellant
prevail on this complaint, the possibility of an award of compensatory
damages exists. See Glover v. USPS, EEOC Appeal No. 01930696 (December 9,
1993). Because appellant requested compensatory damages in her June 14,
1995 formal complaint, the agency should have requested that appellant
provide some objective proof of the alleged damages incurred, as well as
objective evidence linking those damages to the adverse actions at issue.
See Benton v. Department of Defense, EEOC Appeal No. 01932422 (December
10, 1993). Accordingly, the agency's decision to dismiss appellant's
complaint for mootness is REVERSED.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
A complainant commences the EEO process by contacting an EEO Counselor
and �exhibiting an intent to begin the complaint process.� See Gates
v. Department of Air Force, EEOC Request No. 05910798 (November 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is �logically connected with the EEO process� is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(September 7, 1990); see Kemer v. General Services Administration,
EEOC Request No. 05910779 (December 30, 1991).
After a thorough review of the record, the Commission is unable to
determine the dates on which the incidents in allegation (3) occurred.
Specifically, appellant claims that her lunch period was first reduced
on the day that she met with the investigator of a different case, but
no evidence of the earlier case is included in this file. Further,
appellant claims that the incidents occurred every day that she was
employed. If appellant was advised once about her lunch restrictions,
and appellant never raised the issue again, then the date appellant was
informed of the thirty-minute restriction is the only incident date. If,
however, appellant asked for extended lunch periods on a recurring basis,
and each time appellant was told that she would have only thirty minutes
for lunch, then each time her request was denied is a separate incident
date. The same rationale holds for appellant's use of leave slips: each
time appellant asked for leave, and was informed that she would have to
submit a leave slip, is a date on which the allegation occurred; unless,
appellant was informed at one time that all future leave requests must
be accompanied by a leave slip, which would be the triggering incident.
The Commission also is unable to determine appellant's initial counselor
contact date. Appellant claims to have spoken with an EEO investigator
about allegation (3), and argues that the investigator told her he
would address the issue in Agency No. 94(56)HQ; however, no evidence was
provided concerning the circumstances of that contact. The Commission
has held that contact with an EEO investigator can suffice for initial
counselor contact. See Howard v. Department of Army, 01955428 (Aug. 14,
1996).<3> Without any information concerning appellant's contact with
the investigator, the Commission is unable to determine appellant's date
of initial contact.
CONCLUSION
Accordingly, the agency's decision to dismiss allegation (3) of
appellant's complaint is VACATED, and the allegation is REMANDED in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
Contact appellant and request, in writing, the exact dates of each
occurrence of discrimination. Specifically, the agency shall ask for
each date that appellant requested leave and was ordered to file a leave
slip, and for each date that appellant requested an extended lunch,
but was limited to thirty minutes;
Obtain an affidavit or statement from the investigator of agency
number 94(56)HQ, regarding whether appellant mentioned lunch or leave
restrictions, and whether the investigator informed appellant that she
would not have to file a new complaint on the allegation;
Include a copy of any relevant documentation of agency number 94(56)HQ
in the record of the present case file, including, but not limited to,
the 94(56)HQ investigative report;
Obtain any other information relevant to the issue of counselor contact
for allegation (3), and include it in the record of the present case file.
Thereafter, the agency shall determine whether appellant timely raised
allegation(3) with an EEO Counselor. Within 45 days of the date this
decision becomes final, the agency shall either issue a new FAD dismissing
allegation (3) and/or a notice of processing. A copy of the new FAD
dismissing allegation (3) and/or notice of processing 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 22, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The Commission also reversed the dismissal of allegation (4) and
affirmed the dismissal of allegation (5). Subsequently, the agency
accepted allegation (4) by letter dated November 7, 1996.
2We note that the identified attachment to appellant's November 15, 1996
letter, i.e., a copy of the investigative report of Agency No. 94(56)HQ,
is not included in the present record.
3However, appellant must have pursued her complaint with due diligence.
See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam) ("One who fails to act diligently cannot invoke equitable
principles to excuse lack of diligence"); Rys v. U.S. Postal Service,
886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title
VII plaintiff must have diligently pursued her claim").