01990337
02-10-2000
Mary L. Mason, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.
Mary L. Mason, )
Complainant, )
)
v. ) Appeal No. 01990337
) Agency No. FDA-R-054-98
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
(Food and Drug Administration), )
Agency. )
____________________________________)
DECISION
Based on a review of the record, the Commission finds that the agency
improperly dismissed complainant's complaint for failure to state a
claim.<1> See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to and
to be codified as 29 C.F.R. � 1614.107(a)(1)). The agency has offered
no new contentions in response to complainant's October 7, 1998 appeal
from the agency's September 2, 1998 final decision (FAD) to persuade us
to the contrary.<2>
We find the FAD erred in dismissing complainant's complaint filed on July
7, 1998, identified by the agency as consisting of claims (1) through
(11), even if, individually, they may not have set forth a cognizable
claim. We find, from a fair reading of the record and complainant's
complaint, that complainant has alleged harassment based on reprisal.<3>
See the Commission's Guidance on Investigating, Analyzing Retaliation
Claims, Compliance Manual Section 8, Directives Transmittal No. 915.003
(May 20, 1998).
Therefore, we find the agency improperly treated complainant's complaint
in piecemeal fashion. See Drake v. Department of the Air Force, EEOC
Request No. 05970689 (March 29, 1999); Tilden v. Department of the
Army, EEOC Appeal No. 01976352 (July 2, 1998); Meaney v. Department of
the Treasury, EEOC Request No. 05940169 (November 3, 1994). See also
the Commission's revised Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110) (November 9, 1999), Ch. 5, � III (Agencies Must Avoid
Fragmenting EEO Complaints).
Finally, we note that the agency dismissed on the grounds of mootness
one of complainant's claims relating to being assigned a responsibility
that was the duty of a Supervisory Investigator. The record, however,
reflects that as a remedy, complainant requested compensatory damages. We
find that this claim has not been rendered moot because, at a minimum,
the agency failed to address the claim for compensatory damages.
See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
In summary, the FAD is hereby REVERSED and complainant's complaint is
hereby REMANDED for further processing consistent with the Commission's
decision and applicable regulations. The parties are advised that this
decision is not a decision on the merits of complainant's complaint.<4>
The agency shall comply with the Commission's ORDER set forth below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
February 10, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2On appeal, complainant averred that she received the FAD on September
11, 1998. In the absence of evidence to the contrary, we accept her
appeal as timely. See 64 Fed. Reg. 37,659 (1999) (hereinafter referred
to and to be codified as 29 C.F.R. � 1614.402(a)).
3See Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.; and 29 C.F.R. �1614.101(b).
4We note that, as part of the relief sought, complainant requested
punitive damages. However, Federal employees may not recover punitive
damages. See Jones v. Department of Health and Human Services, EEOC
Request No. 05940377 (January 23, 1995).