Sammy L. Conner, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 20, 1999
01981969 (E.E.O.C. Apr. 20, 1999)

01981969

04-20-1999

Sammy L. Conner, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Sammy L. Conner v. Department of the Army

01981969

April 20, 1999

Sammy L. Conner, )

Appellant, )

)

v. ) Appeal No. 01981969

) Agency No. 970980100

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was received by

appellant on December 12, 1997. The appeal was postmarked January 8,

1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

For the following reasons, the agency's decision is AFFIRMED in part,

REVERSED in part and REMANDED.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint.

BACKGROUND

Appellant contacted an EEO counselor on April 3, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when (1) he was denied annual leave on April

3rd and 4th, 1997; (2) he was not allowed to return to work on light duty

after having back surgery; and (3) he had to file a grievance in order

to transfer from one lock to another so that he could be closer to home.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on November 19, 1997, appellant filed a formal complaint

alleging that he was the victim of unlawful employment discrimination

on the basis of race (black).

On December 8, 1997, the agency issued a final decision (FAD) dismissing

allegation (1) as moot, and allegations (2) and (3) as untimely.

Allegation (3) was also dismissed on the alternate grounds that it

concerned matters which had been raised in a negotiated grievance

procedure that permits allegations of discrimination. Regarding

allegation (1), the agency found that the denial of annual leave was

due to the fact that between April 3rd and 4th 1997, appellant's job

site was being prepared for a rededication and all employees were needed

to accomplish the task. The agency contends that the completion of the

rededication has eradicated the effects of the alleged violation and it is

not likely that the alleged violation, i.e., the denial of annual leave,

will recur.

The FAD found that appellant's April 3, 1997 EEO contact regarding

allegation (2) which occurred in 1994 and allegation (3) which took

place February 17, 1995, was beyond the forty-five day time limitation

established by EEOC Regulation. The FAD dismissed allegations (2)

and (3) as untimely. The agency also dismissed allegation (3) on the

alternate grounds that appellant had previously raised the allegation

in a grievance filed on February 17, 1995.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a

complaint, or portions thereof, when the issues raised therein are moot.

An allegation is moot only if (1) 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

violation. See Henderson v. Department of the Treasury, EEOC Request

No. 05940820 (August 31, 1995)(citing County of Los Angeles v. Davis,

440 U.S. 625 (1979).

The record herein indicates that allegation (1) of appellant's complaint

alleges that he was denied annual leave on April 3rd and 4th, 1997 while

the leave request of a white employee during that time period was granted.

Appellant asserts that the agency discriminated against him because of his

race when it treated him differently than a similarly situated employee.

On appeal the agency maintains that appellant did not suffer any harm

as a result of the agency's decision to deny appellant's leave request.

The agency states further on appeal that the fact that it denied the leave

request for another white employee during the time of the rededication

demonstrates that the agency's decision was not based on appellant's race.

The FAD also indicates that since it is not likely that a rededication

will recur, appellant's allegation is moot.

Upon review, the Commission determines that the agency has failed to

demonstrate that interim events have completely eradicated the effects

of the alleged violation, or that the alleged violation is not likely

to recur. The fact that another similarly situated employee was denied

leave does not negate the possibility that appellant was discriminated

against as a result of the agency's actions in this particular instance.

We find further that the agency's decision regarding allegation (1)

is one on the merits of the allegation rather than on whether or not

the allegation is moot. Accordingly we REVERSE the agency's decision

with respect to allegation (1) of appellant's complaint and REMAND the

allegation for processing.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO 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.

Based on our review of the record and previous Commission's decisions on

this issue, we hold that appellant's EEO Counselor contact on April 3,

1997, was untimely. The Commission has held that where there is an issue

of timeliness, the agency always bears the burden of obtaining sufficient

information to support a reasoned determination as to timeliness.

Williams v. Department of Defense, EEOC Request No. 05920506 (August

25, 1992). Appellant has not indicated that he was unaware of the

time limit and he fails to offer any other persuasive reason for his

delay in seeking EEO counseling. Moreover, the agency has provided

the Commission with a copy of an EEO poster containing relevant contact

information which is on display at appellant's work site. Accordingly,

the agency has met its burden concerning the issue of timeliness.

The Commission finds that the agency's decision regarding allegations

(2) and (3) was proper. Because we affirm the agency's dismissal of

allegation (3) based on untimeliness, we find it unnecessary to discuss

the agency's dismissal on alternate grounds.

CONCLUSION

Accordingly, the agency's decision is AFFIRMED in part, REVERSED in part

and REMANDED.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation (1) in accordance

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

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively, the

appellant 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. ��1614.408 and 1614.409. 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 appellant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 29

C.F.R. �1614.410.

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 (T0993)

This decision affirms the agency's final decision 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 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.

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. 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. 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:

April 20, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations