01982990
03-30-1999
Esther F. Soto, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Esther F. Soto v. Department of the Army
01982990
March 30, 1999
Esther F. Soto, )
Appellant, )
)
v. ) Appeal No. 01982990
) Agency No. BREQF09603G0050
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
For the reasons that follow, the Commission finds the agency properly
dismissed appellant's complaint in its January 20, 1998 final decision,
which, as we explain below, we now identify as FAD-2. We find neither
evidence nor argument in appellant's February 28, 1998 appeal, by her
attorney, to persuade us to reach a contrary conclusion.<1>
Because of the extensive procedural history in this matter and a record
that is not entirely clear, we briefly review the salient facts in
this matter. We find appellant filed a formal EEO complaint dated
September 20, 1995, wherein she raised the following two allegations:
(1) the agency would not honor a settlement agreement (SA) it entered
into with her in May 1994, and had no intention of doing so; and (2)
her supervisor (SPV) made "demeaning, sexually explicit body gestures
toward [her]" in September 1994. By way of relief appellant requested
a GS-9 promotion apparently retroactive to the effective date of the SA.
The agency initially dismissed appellant's complaint in a February
28, 1996 final decision (FAD-1), for raising the same claim previously
decided by the Commission in Soto v. Department of the Army, EEOC Appeal
No. 01951139 (May 3, 1995) ("Soto I"). We affirmed FAD-1's dismissal
of allegation (1), but on the grounds of failure to state a claim, in
Soto v. Department of the Army, EEOC Appeal No. 01963416 (June 6, 1997)
("Soto II"), request to reconsider denied at EEOC Request No. 05970891
(December 1, 1997) ("Soto III"). In Soto II, we found that the
Commission in Soto I had declared the May 1994 SA unenforceable and
had ordered the agency to reinstate appellant's underlying complaint.
Although we affirmed the agency's dismissal of allegation (1) in Soto II,
we reversed the agency's dismissal of allegation (2) because we found
no evidence appellant had raised allegation (2) in a prior complaint.
In Soto III, however, the agency sought affirmance of its dismissal
of allegation (2) because appellant had filed a civil action in
the United States District Court, Western District of Texas, under
No. EP-96-CA-499-DB, wherein appellant purportedly raised the same
allegation. In Soto III, the Commission denied the agency's request
because we could not determine whether appellant's "general allegations
of sexual harassment against the agency," in her civil action, were
the same as those in her administrative complaint. We further declared
the Commission would not dismiss allegation (2) because we also noted
the agency was "attempting to have appellant's civil action dismissed
for failure to exhaust her administrative remedies and is arguing that
appellant failed to plead issues in her sexual harassment claim." Id.
Thus, we expressed our concern that, if the Commission were to dismiss
allegation (2), appellant might "be left without a forum." Id.
We now turn to FAD-2, the subject of the present appeal. In FAD-2,
the agency dismissed allegation (2) for untimely EEO Counselor contact,
pursuant to 29 C.F.R. �1614.107(b), finding that appellant's June 12,
1995 EEO Counselor contact was well beyond the applicable time limitation
of 45 days from the date of the most recent act of discrimination
cited by appellant in her September 1995 formal EEO complaint, which
was September 1994. See 29 C.F.R. �1614.105(a)(1). We agree with
FAD-2, in this regard, and find no justification for an extension of
the applicable time limitations. See 29 C.F.R. ��1614.105(a)(2) and
.604 in pertinent parts. We also find no prohibition against FAD-2's
dismissal of allegation (2) for lack of timeliness, in the absence of a
determination on the merits of that allegation. See Oaxaca v. Roscoe,
641 F.2d 386 (5th Cir. 1981).
FAD-2, in the present case, also dismissed allegation (2), pursuant to
29 C.F.R. �1614.107(c), for the stated reason that appellant had raised
allegation (2) in her civil action and had "abandoned the administrative
process when she chose to file in court." FAD-2 also averred that
appellant had "failed to exhaust her administrative remedies." FAD-2
further declared that the Court had rendered a decision on the issue
of sexual harassment by SPV. However, in this regard, we find that
the Court's December 19, 1997 "MEMORANDUM OPINION AND ORDER," in docket
no. EP-96-CA-499-DB, found in dictum that she had been sexually harassed,
since the Court also earlier determined that appellant had failed
to exhaust her administrative remedies and, therefore, her claims of
sexual harassment "were prematurely filed and should be dismissed,"<2>
as requested in a motion by the agency. Thus, were the Commission in
this case to sustain FAD-2's determination on the question of the civil
action, we face the dilemma we faced in Soto III and risk depriving
appellant of a forum. However, in light of our affirmance of FAD-2's
determination on the question of timeliness, we need not address the
question of appellant's civil action further other than to note, as we
indicated above, a record that is not entirely clear.<3>
Finally, we find appellant's complaint, that is, allegation (2), is
subject to dismissal for mootness pursuant to 29 C.F.R. �1614.107(e). We
find that appellant left the activity, according to her own statement on
appeal, "in late March 1996," and, according to the Court's opinion and
order, which we referenced above and will not repeat here, appellant
"retired from service in March 1997." Therefore, in the absence of a
claim by appellant in her administrative complaint, or on appeal in the
present matter, of constructive discharge or for compensatory damages,
we find there is no further relief available to appellant even if she
were to prevail on the merits of allegation (2). Therefore, we find
allegation (2) to be moot. See County of Los Angeles v. Davis, 440
U.S. 625 (1979).
Having reviewed the record in its entirety, the arguments on appeal,
including those not expressly addressed herein, and for the foregoing
reasons, the Commission hereby AFFIRMS FAD-2's dismissal of allegation
(2) in appellant's September 20, 1995 formal EEO complaint.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
March 30, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations
1Appellant indicated she received the FAD on February 2, 1998. In the
absence of evidence to the contrary, we accept appellant's appeal
as timely. See 29 C.F.R. ��1614.402, .604, and .605.
2The Court's decision identified three EEO complaints appellant had filed,
the second of which pertained to her claims concerning the SA and SPV's
alleged sexual harassment of appellant.
3We find, for example, that the agency failed to provide certain documents
it had referenced in FAD-2, including appellant's purported identification
of the three complaints before the Court.