01983276
06-02-1999
April B. Stinelli, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
April B. Stinelli v. Department of Transportation
01983276
June 2, 1999
April B. Stinelli, )
Appellant, )
)
v. ) Appeal No. 01983276
) Agency No. 1-98-1047
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner. Appellant alleged that she was subjected
to discrimination on the bases of race (Black), sex (female), and physical
disability (partial hearing loss) when:
On December 5, 1997, the agency terminated appellant's employment;
In June 1997, appellant was denied necessary training for the performance
of her job duties;
On August 4, 1997, appellant was denied a change in her daily work
schedule, while others were permitted to do so; and
When appellant was subjected to disparate treatment and a hostile work
environment and complained about, management took no remedial action.
On March 9, 1998, the agency issued a FAD dismissing allegations
(2) through (4) pursuant to 29 C.F.R. �1614.107(b), for untimely EEO
Counselor contact. The agency determined that appellant's December 9,
1997 initial EEO Counselor contact occurred more than forty-five (45)
days from the date of the alleged incidents of discrimination and was,
therefore, untimely.
On appeal, appellant contends that she was unaware of the forty-five
(45) day limitation period as she was provided no such training, and no
EEO posters were present at her work location.
In response, the agency asserts for the first time that allegations
(2) and (3) fail to state a claim and have been rendered moot by the
termination of her employment with the agency.
The Commission notes that the record contains a letter dated April 1,
1998, in which appellant requested, as remedial relief, compensatory
damages in the amount of $10,000 for the related stress, suffering,
and expenses that resulted from the alleged discrimination.
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 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 allegation (4), appellant alleged that she was discriminated against
when management failed to take any action after she informed them of
being subjected to a hostile work environment. The agency determined
that more than forty-five (45) days occurred from the date appellant
informed management of her allegations, thus making her December 9, 1997
initial EEO Counselor contact untimely. We find that this was improper,
as the agency should have instead tolled the limitation period from the
date appellant suspected discrimination, i.e., when appellant suspected
that management's lack of response to her concerns was discriminatory.
Consequently, we find that allegation (4) was improperly dismissed for
untimely EEO Counselor contact.
On appeal, appellant contends that she was unaware of the forty-five (45)
day time limitation for initiating Counselor contact, as she received
no EEO training and did not see any EEO posters at her work location.
As the agency provided no evidence to rebut appellant's contention,
we find that dismissal of allegations (2) and (3) pursuant to 29
C.F.R. �1614.107(b) was also improper.
EEOC Regulation 29 C.F.R. �1614.107(a) 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. 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 21, 1994).
We do not concur with the agency's contention that allegations (2) and
(3) fail to state a claim. Both allegations concern alleged harm to a
term, condition or privilege of employment, i.e., appellant's access to
training, and her opportunity to change her work schedule. The fact
that appellant was later provided both opportunities is irrelevant
for the purposes of determining the procedural issue of whether those
allegations state a claim. Consequently, we find no credence to the
agency's contention that allegations (2) and (3) fail to state a claim
under 29 C.F.R. �1614.
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 April
1, 1998 correspondence, 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). Based on the foregoing, we find that allegations (2) and (3)
were not rendered moot by the termination of appellant's employment with
the agency.
Accordingly, the agency's decision to dismiss allegations (2), (3),
and (4) was improper, and is hereby REVERSED. Those allegations are
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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:
June 2, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations