01A24342_r
07-29-2003
Bertha M. Dunn, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Bertha M. Dunn v. Department of Defense (Defense Logistics Agency)
01A24342
July 29, 2003
.
Bertha M. Dunn,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A24342
Agency No. JQ-00-029
DECISION
Complainant appealed to this Commission from the agency's June 27, 2002
final order implementing a June 10, 2002 EEOC Administrative Judge's
(AJ's) decision. In her decision, the AJ found that complainant's
claims should be dismissed for untimely counselor contact, and for
being moot. Complainant alleged discrimination on the bases of race
(African-American), color (black), age, and reprisal for prior EEO
activity when:
Complainant's supervisor placed her on AWOL in March 1999;
On July 29, 1999, complainant's supervisor annotated complainant's
employee record for speaking to her in a derogatory manner; and
On April 25, 2000, complainant received a counseling memorandum regarding
her work performance.
In her dismissal, the AJ found that complainant was listed as AWOL
for fifteen minutes each day on March 29, 1999, and March 31, 1999.
Complainant failed to contact an EEO Counselor regarding this matter
until August 1999, more than forty-five days after the incident occurred.
Therefore, the AJ concluded that claim (1) should be dismissed for
untimely counselor contact.
The AJ also found that claims (2) and (3) were moot. Specifically, the AJ
noted that all reference to the counseling memorandum and annotation for
complainant's record were removed from complainant's Official Personnel
Record (OPF). Further, the AJ explained that the supervisor responsible
for placing the documents in complainant's OPF has retired, and the
manager who approved the supervisor's actions has been transferred out
of complainant's chain-of-command. Upon review of several affidavits
concerning the mental anguish complainant suffered, the AJ concluded that
complainant had not presented sufficient evidence of compensatory damages.
Therefore, the AJ found that claims (2) and (3) were moot.
On appeal, complainant argues that the AJ ignored her evidence of
compensatory damages in order to avoid the effort of conducting a hearing
in her case. Complainant contends that the affidavits provide ample
evidence that she is entitled to compensatory damages, and that the
AJ's order to show cause, requesting further evidence of complainant's
compensatory damages, failed to clarify what evidence was sought.
Complainant also argues that she is entitled to a promotion that she
was denied as a result of the documents contained in her OPF.
The agency or AJ may dismiss claims that have been rendered moot.
29 C.F.R. � 1614.107(a)(5). To determine whether the issues raised
in the 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). Further, where complainant has requested compensatory damages,
the agency must address complainant's possible entitlement to compensatory
damages before it dismisses a complaint as moot. See Rouston v. National
Aeronautics and Space Administration, EEOC Request No. 05970388 (March
18, 1999). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
In the present case, the Commission finds that the agency's actions
have been completely and irrevocably eradicated, and that complainant
has no reasonable expectation that the alleged violation will recur.
Further, complainant has failed to provide evidence of her entitlement
to compensatory damages. Her evidence does not establish the necessary
causation between the specific actions alleged in her complaint, and
the injuries she claims to suffer. The affidavits refer to a change in
complainant's demeanor as a result of supervisory actions, but do not
identify the actions complainant raised in her complaint as the reason
behind the changes in complainant's demeanor. Further, complainant has
presented no evidence that she was denied a promotion as a result of
the information in her OPF. Therefore, the Commission finds that claims
(2) and (3) have been rendered moot.
With regard to timeliness, complainant must raise claims of
discrimination within forty-five (45) days of their occurrence.
See 29 C.F.R. � 1614.105(a)(1). The agency may dismiss claims that
fail to comply with this time limit. See 29 C.F.R. � 1614.107(a)(2).
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented by
circumstances beyond his control from contacting the Counselor within the
time limits, or for other reasons considered sufficient by the agency or
the Commission. 29 C.F.R. � 1614.105(a)(2). Complainant failed to raise
claim (1) within forty-five days of its occurrence, and never provided
any explanation for her untimeliness. Therefore dismissal of claim (1)
was proper.
CONCLUSION
Accordingly, the agency's final order, and the AJ's decision, is AFFIRMED.
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 (S0900)
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. 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
July 29, 2003
__________________
Date