01a44026
09-15-2004
Barbara A. Foster, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Barbara A. Foster v. Department of Defense
01A44026
September 15, 2004
.
Barbara A. Foster,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A44026
Agency No. DFAS-IN-CP-04-049
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated June 19, 2004, dismissing her 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On October 17, 2003, complainant initiated contact with the EEO office
claiming that she was the victim of unlawful employment discrimination
on the bases of race, disability and in reprisal for prior EEO activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
Complainant filed the instant formal complaint on March 19, 2004
In its June 19, 2004 final decision, the agency determined that
complainant's complaint was comprised of four claims, identified in the
following fashion:
(1) in May 2003, complainant applied under Vacancy Announcement Number
XC-0015-03, for a GS-0544-5, Civilian Pay Technician position and was
not selected;
(2) on June 17, 2003, she received an "M" in Job Element number 1 of
her civilian performance rating for the period covering September 2,
2002 through April 5, 2003;
(3) on September 9, 2003, she was issued a Letter of Reprimand; and
(4) on September 25, 2003, her request to be transferred to another
supervisor was denied.
The agency dismissed claims (1) and (2) pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency determined
that the alleged discriminatory events occurred in May 2003 and on
June 17, 2003, respectively, but that complainant did not contact an
EEO Counselor until October 17, 2003, beyond the 45-day time limit
set by the regulations. The agency also dismissed claim (1) on the
alternative grounds of failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency found that no selection was
made and that complainant was not aggrieved.
The agency dismissed claims (3) and (4) pursuant to 29 C.F.R. �
1614.107(a)(4) on the grounds that these claims in the instant complaint
are the same matters that were raised in a negotiated grievance procedure
that permits claims of discrimination. The agency also dismissed claim
(4) on the grounds of mootness, pursuant to 29 C.F.R. � 1614.107(a)(5).
The agency determined that by an e-mail dated April 8, 2004, complainant's
former supervisor stated that on December 27, 2003, complainant was
moved out of Customer Service.
Claims (1) and (2)
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 record reflects that the alleged incidents occurred in May 2003
and on June 17, 2003, respectively; however, complainant did not
initiate EEO Counselor contact until October 17, 2003, well beyond the
forty-five-day limitation period for initiating timely EEO Counselor
contact. Complainant failed to present adequate justification pursuant
to 29 C.F.R. � 1614.105(a)(2), for extending the limitation time period
beyond the forty-five days. Therefore, we find that the agency properly
dismissed claims (1) and (2) for untimely Counselor contact.
Because we affirm the agency's dismissal of claim (1) for the reason
stated herein, we find it unnecessary to address the agency's decision
to dismiss this claim on alternative grounds.
Claims (3) and (4)
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that the agency
shall dismiss a complaint when the complainant has raised the matter in
a negotiated grievance procedure that permits claims of discrimination.
The record reflects that on November 4, 2003, complainant, through the
union, filed a formal grievance concerning her Letter of Reprimand (claim
(3)) and request to be transferred to another supervisor (claim (4)).
The record contains a copy of the Step 2 decision dated September 25,
2003, and Step 3 decision dated December 3, 2003, reflecting that the
grievances encompass claims (3) and (4) raised in the instant complaint.
In his Step 3 decision, the Director, Navy Vendor Pay Services denied
complainant's request to have her Letter of Reprimand removed from her
OPF, but granted her request to be moved to another supervisor.
However, the record does not contain a copy of the negotiated
grievance procedure identified by the agency in its final decision,
which purportedly provides for the acceptance of grievances which allege
discrimination. Clearly, it is the burden of the agency to have evidence
or proof in support of its final decision. See Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991).
The agency also dismissed claim (4) on the alternative grounds of
mootness, pursuant to 29 C.F.R. � 1614.107(a)(5). The record contains
a copy of complainant's former supervisor's e-mail dated April 8, 2004,
to an agency official. In her e-mail, the former supervisor stated that
on December 27, 2003, complainant was moved out of Customer Service and
�is performing quite admirably in her new duties.� However, the record
reflects that in her formal complaint, complainant requested compensatory
damages for �the mental and physical stress management/supervisor(s)
has caused me.� We have held that an agency must address the issue of
compensatory damages when the complainant presented objective evidence
that she incurred compensatory damages and that the damages were related
to the alleged discrimination. Jackson v. USPS, EEOC Appeal No. 01923399
(November 12, 1992); request to reopen denied, EEOC Request No. 05930386
(February 11, 1993). Where, as here, a complainant requests compensatory
damages during the processing of her complaint, the agency is obliged
to request from the complainant objective evidence of such damages.
See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
Therefore, we find that the agency improperly dismissed claim (4) on
the alternative grounds of mootness pursuant to � 1614.107(a)(5).
Accordingly, the agency's dismissal of claims (1) and (2) is AFFIRMED.
The agency's dismissal of claims (3) and (4) is REVERSED. Claims (3)
and (4) are 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 claims (claims (3) and (4))
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 (K0501)
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)
(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 (M0701)
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
September 15, 2004
__________________
Date