01996229
01-29-2001
Shirley A. Morin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shirley A. Morin v. United States Postal Service
01996229
January 29, 2001
.
Shirley A. Morin,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996229
Agency No. 4B-028-0077-99
DECISION
Complainant filed a timely appeal with this Commission from the agency
decision dated July 2, 1999, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et
seq. <1> In her complaint, complainant alleged that she was subjected
to discrimination on the bases of age (DOB 10/13/35) and in reprisal
for prior EEO activity when:
On an unspecified date the agency failed to straighten out an incorrect
pay issue;
In January 1999, complainant's credit history was checked by the agency's
Inspection Service; and
In correspondence dated April 9, 1999, complainant was sent a notice
advising her that she had the option of filing for Disability retirement
or being separated from the agency's rolls within fourteen days.
Complainant further alleged that the foregoing incidents constituted
unlawful harassment.
The agency dismissed claims (1) and (2) for untimely EEO counselor
contact, dismissed claim (2), alternatively, for failure to state
a claim, and dismissed claim (3) on the grounds that it was moot.
Specifically, the agency determined that although complainant failed
to indicate the date on which the incident identified in claim (1)
occurred, the record indicated that she sought assistance in this
matter from her Congressman in August 1998. The agency determined,
therefore, that complainant suspected discrimination at that time, and
that her April 22, 1999 EEO counselor contact was untimely. The agency
also found that complainant's initial EEO counselor contact was untimely
with regard to claim (2), as it, too, occurred more than forty-five (45)
days from the date of the alleged discrimination. Alternatively, the
agency concluded that complainant failed to show that she suffered harm
to the terms, conditions, or privileges of her employment as a result
of the agency checking her credit history, and, therefore, that claim
(2) failed to state a claim. Finally, the agency found that because
a personnel action was processed on June 25, 1999, which reactivated
complainant as an employee effective on the same date on which her
separation was to have occurred, this action rendered claim (3) moot.
The Commission notes that in its submissions responding to complainant's
appeal, the agency indicated that on July 1, 1999, it issued complainant
a Notice of Proposed Separation (Disability).
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant'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); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
In the instant case, we find that the June 25, 1999 personnel action
did not render claim (3) moot. As evidenced by the agency's July 1,
1999 issuance of a Notice of Proposed Separation, we find that there is a
reasonable expectation that the alleged violation, i.e., that the agency
will send complainant notice of her proposed separation from the agency,
will recur, and that it, in fact, did recur. As the first prong of the
Davis test is not satisfied, we find that the agency erred in dismissing
claim (3) as moot.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
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.
In the instant case, we find that the agency properly dismissed claims
(1) and (2) for untimely EEO counselor contact. With regard to claim
(1), it is clear that in August 1998, complainant sought assistance
from her Congressman concerning the pay issue. Similarly, the record
indicates that complainant alleged that the agency's inspection service
requested a credit check on her in January 1999. On appeal, no persuasive
arguments or evidence have been presented to warrant an extension of
the time limit for initiating EEO contact.<2>
Accordingly, the agency's dismissal of claims (1) and (2) is AFFIRMED
for the reasons set forth herein. The agency's dismissal of claim (3)
is hereby REVERSED. Claim (3) is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 29, 2001
__________________
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 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2Since we are affirming the agency's dismissal of claim (2) on the grounds
of untimely EEO counselor contact, we will not address the agency's
alternative grounds for dismissal, i.e., that it fails to state a claim.