01982467
06-15-1999
Yazmine F. Cook, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Yazmine F. Cook v. Department of the Army
01982467
June 15, 1999
Yazmine F. Cook, )
Appellant, )
)
)
v. ) Appeal No. 01982467
) Agency No. ANBKFO9803I0130
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 initial final agency decision, which was,
subsequently, amended on March 19, 1998, and August 4, 1998, was received
by appellant on February 9, 1998. The appeal was filed on February 12,
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.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed allegation
(1) as moot and allegations (2) through (4) due to untimely EEO Counselor
contact.
BACKGROUND
The record indicates that on June 30, 1997, appellant contacted an EEO
Counselor with regard to her complaint. Unable to resolve the matter
informally, appellant filed a formal complaint dated September 8, 1997,
alleging that she was discriminated against based on national origin
(Hispanic) when: (1) on June 30, 1997, her supervisor did not allow her
to look at her personnel folder; (2) on January 27, 29, and May 14, 1997,
she was continuously given assignments at the end of the day and expected
to complete them prior to leaving; (3) in February 1997, her supervisor
threatened to give her a bad rating if the supervisor received a bad
rating; and (4) in August 1996, her supervisor took away all her duties.
On February 4, 1998, the agency issued a final decision, which was
subsequently amended on March 19, 1998, dismissing allegations (2) through
(4) due to untimely EEO Counselor contact. The agency stated that the
incidents in the subject allegations occurred on/in January 27 and 29,
1997, May 14, 1997, February 1997, and August 1996, but appellant did
not contact an EEO Counselor until June 30, 1997, which was beyond the
requisite time limit.
Thereafter, on August 4, 1998, the agency issued a final decision
dismissing allegation (1) as moot. The agency stated that appellant was
no longer under the supervision of the responsible supervisor. The agency
also indicated that the alleged incident was remedied when appellant was,
subsequently, allowed access to her file. In addition, the agency stated
that under appellant's new supervisor, a new filing system was put into
place for all personnel folders which appellant maintained.
On appeal, appellant contends that she initially contacted an identified
EEO Counselor in August 1996, with regard to the alleged incidents
and thereafter whenever she had a complaint against the responsible
supervisor. Appellant also submits several statements from her coworkers
indicating that appellant frequently contacted the identified EEO
Counselor concerning the alleged harassment since August/September 1996.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall
dismiss a complaint or a portion of a complaint that is moot. The issues
raised in a complaint of discrimination are no longer in dispute (1) if
it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violation. County of Los Angeles v. Davis, 440 U.S. 625 (1979).
In allegation (1), appellant indicated that she was not allowed to look
at her personnel folder. The record, however, indicates that appellant
was, subsequently, allowed to look at the subject folder. Furthermore,
the record indicates that appellant is no longer under the supervision
of the responsible supervisor, and a new filing system has been put into
place for all personnel folders. Based on the foregoing, we find that
the interim relief has rendered the subject allegation moot.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person must initiate contact with a Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
The record indicates that the incidents in allegations (2) through (4)
occurred on/in January 27 and 29, 1997, May 14, 1997, February 1997,
and August 1996. Appellant contacted an EEO Counselor with regard to
the matters on June 30, 1997, which was beyond the 45-day time limit set
by the regulations. On appeal, appellant contends that she initially
contacted an identified EEO Counselor in August 1996, and thereafter.
Although appellant, in support of her contention, submits several
statements from her coworkers indicating her EEO Counselor contact on
many occasions prior to June 30, 1997, she failed to show that she
made those contacts with an intent to pursue the complaint process.
See Gates v. Department of the Air Force, EEOC Request No. 05910798
(November 22, 1991). Thus, we find that appellant failed to present
persuasive arguments or evidence to show that she contacted an EEO
Counselor with regard to the complaint in a timely manner pursuant to
29 C.F.R. �1614.105(a)(1).
CONCLUSION
Accordingly, the agency's decision to dismiss allegation (1) as moot
and allegations (2) through (4) due to untimely EEO Counselor contact
was proper and is AFFIRMED.
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. �1614.604(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:
June 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations