Jacqueline A. Boatner, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01A13263_r (E.E.O.C. Sep. 25, 2002)

01A13263_r

09-25-2002

Jacqueline A. Boatner, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Jacqueline A. Boatner v. Department of the Navy

01A13263

September 25, 2002

.

Jacqueline A. Boatner,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A13263

Agency No. 91-67399-002

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated April 10, 2001, dismissing her complaint of unlawful

employment discrimination on the bases of race (African-American), color,

disability (Impingement Syndrome), and sex (female).

On February 1, 2000, complainant initiated contact with an EEO Counselor.

The EEO Counselor's Report contained in the record indicates that

complainant underwent EEO counseling because she was denied a reasonable

accommodation and because she was terminated from her agency position in

March 2000. Informal efforts to resolve her concerns were unsuccessful.

On March 30, 2000, complainant filed a formal complaint.

In its final decision, dated April 10, 2001, the agency identified

complainant's complaint as being comprised of the following claims:

On September 4, 1998, the agency denied complainant's request for an

ergonomic chair and closer parking near the building where she worked.

Further, the disability parking was installed only after July 1999;

complainant had to climb up and down the stairs to pick up work; and

complainant's request to move the computer in front of the keyboard so

that she could avoid turning constantly back and forth was denied;

Around June 1999, complainant was removed from Building 2044 to the

engineering building, and her workstation was located near an area

without air circulation. Complainant's supervisor ignored the Human

Resources Office's suggestion that an air-conditioner be purchased

for complainant's workstation and moved complainant downstairs in a

garage with bay doors that was left open for air circulation. Also,

complainant's supervisor denied her requests for reasonable accommodation

on September 4, 1998, June 1999, and October 1999, for the above issues,

saying he could not accommodate complainant; and

The agency retaliated against complainant because her spouse witnessed

an alleged theft of $10,000 worth of office equipment.

The agency dismissed complainant's complaint. Specifically, the agency

found that the matters that it identified as claims (a), (b), and (c)

were untimely raised with an EEO Counselor. Also, the agency found that

the complaint was rendered moot because the agency eventually provided

an ergonomic chair; changed complainant's parking assignment; moved

complainant's work station; provided a fan for complainant; and credited

her with eighty hours of advance sick leave. Finally, the agency found

that complainant's retaliation claim (c) was not related to any protected

activity and, hence, failed to state a claim.

Although the agency determined that complainant's complaint was comprised

of the claims identified above as claims (a) - (c), the Commission

determines that a fair reading of the pre-complaint documents as well as

the formal complaint reflects that complainant raised the following issue:

the agency subjected her to discrimination on the bases of race, sex,

and disability when it failed to provide her with reasonable accommodation

for a back disability, culminating with her removal in March 2000.

We further determine that the matter identified as claim (c) by the agency

is essentially background information and not a separate discrimination

claim. We note that complainant does not mention the matter alleged in

claim (c) nor cite reprisal as a basis of discrimination in her formal

complaint.

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.

However, 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.

In the present case, complainant requested a reasonable accommodation.

Complainant alleged that the agency's failure to provide her with a

reasonable accommodation precipitated her termination in March 2000.

The Commission determines that the matter of complainant's reasonable

accommodation is interrelated with the matter of complainant's termination

and should therefore be analyzed comprehensively. Consequently, because

complainant's termination occurred after her initial EEO Counselor

contact on February 1, 2000, we determine that complainant initiated

timely EEO Counselor contact for all the matters raised in the instant

complaint.

The agency also determined that complainant's complaint was rendered

moot because it purportedly provided complainant several actions that

it construed as reasonable accommodations for complainant's disability.

Further, the agency determined that complainant's complaint was also

rendered moot because complainant's removal ensures that the alleged

violations will not recur; however, complainant challenges her removal and

should she prevail may be entitled to reinstatement. A claim cannot be

considered moot unless (1) it can be said with assurance that there is no

reasonable expectation that the alleged violation will recur; and (2) the

interim relief or events have completely and irrevocably eradicated the

effects of the alleged violation. See Copeland v. Department of Veterans

Affairs, EEOC Appeal No. 01991272 (Jan. 24, 2002). From the record

before us, we find that these criteria have not been met. Therefore,

we find that the agency improperly dismissed complainant's claim as moot.

Accordingly, the agency's dismissal of complainant's complaint is

REVERSED, and the complaint, as identified herein, is REMANDED to the

agency for further processing consistent with this decision and the

ORDER below.

ORDER

The agency is ordered to process the remanded complaint in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded complaint 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 (R0900)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (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 25, 2002

__________________

Date