01984378_r
09-07-1999
Albert H. Bennetts, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Albert H. Bennetts, )
Appellant, )
)
v. ) Appeal No. 01984378
) Agency No. BKEXFO9408E0270
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed allegations (1) and (3) through (11), pursuant to EEOC
Regulation 29 C.F.R. �1614.107(e), on the grounds that they were rendered
moot by appellant's resignation. Appellant alleged that he was subjected
to discrimination on the bases of physical disability (carpal tunnel
syndrome) and age (60) when:
Appellant was not allowed to work day hours on the holiday like others,
although he requested to work the holiday;
Appellant was not allowed to work as many hours as other intermittent
employees;
Appellant was told by his supervisor at a meeting that she had given
his scheduled holiday work to someone else;
Appellant was quizzed by his supervisor in front of his co-workers at
a meeting, making appellant look foolish;
Appellant was put down by his supervisor in front of others because he
had left a newspaper for others to read;
Appellant was not given the combination to the supply room though others
had received it;
Appellant received fewer details to do than his co-workers and his
co-workers received special supervision while appellant did not;
Appellant requested and did not receive a key to the cage where he
worked;
Appellant was told not to play computer games but others were allowed
to do so;
Appellant was denied the opportunity to learn the computer and more
about the facility; and
Appellant was required to call in and confirm his schedule.
Appellant further alleged that the foregoing incidents of alleged
discrimination constituted harassment.
The agency originally accepted appellant's entire complaint for
investigation, and appellant requested a hearing before an Administrative
Judge (AJ). Upon the agency's motion, the AJ issued a recommended
decision (RD) finding no discrimination with regard to allegation (2),
and dismissing allegations (1) and (3) through (11) pursuant to 29
C.F.R. �1614.107(e), on the grounds that they were rendered moot by
appellant's August 30, 1994 resignation.
On appeal, appellant contends that his resignation was �coerced,� and,
therefore, that the dismissed allegations were no longer moot.
In response, the agency asserts that there exists no evidence suggesting
that appellant's resignation was coerced, and that he raised this
contention for the first time on appeal. Accordingly, the agency
argues that appellant's constructive discharge allegation should not be
considered within the context of his underlying complaint.
The Commission notes that in the attachments to his formal complaint,
appellant asserted that his supervisor's actions �embarrassed� him in
front of others, and that his supervisor took his �dignity, pride and
self-esteem.�
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.
To determine whether the issues raised in appellant's complaint are moot,
the factfinder must ascertain whether (1) it can be said with assurance
that 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 discrimination. See County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy,
EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
After reviewing appellant's statements, we interpret his comments to
be a request for compensatory damages. The Commission has held that
a complainant need not use legal terms of art such as "compensatory
damages," but may merely use words or phrases to put the agency on notice
that a relevant pecuniary or non-pecuniary loss has been incurred.
See Roubachewsky v. Department of the Navy, EEOC Request No. 05960184
(January 6, 1997); Haynes v. USPS, EEOC Request No. 05920891 (December 14,
1993); Park v. USPS, EEOC Appeal No. 01931280 (December 7, 1993); Banks
v. Department of the Interior, EEOC Request No. 05920680 (March 4, 1994).
Assuming arguendo that appellant were to prevail in this matter, he might
be entitled to compensatory relief. The Commission has long held that the
potential for such damages means that an allegation cannot be dismissed as
being moot. The agency must address the issue of compensatory damages
when a complainant shows objective evidence that she has incurred
compensatory damages, and that the damages are related to the alleged
discrimination. Jackson v. USPS, EEOC Appeal No. 01923399 (November 12,
1992), request to reopen denied, EEOC Request No. 05930306 (February
1, 1993). Because appellant requested compensatory damages, the agency
should have requested that appellant provide some objective proof of the
alleged damages incurred, as well as objective evidence linking those
damages to the adverse actions at issue. See Benton v. Department of
Defense, EEOC Appeal No. 01932422 (December 10, 1993). Based on the
foregoing, we find that the agency erred in dismissing allegations (1)
and (3) through (11) pursuant to 29 C.F.R. �1614.107(e).
The Commission further notes that appellant alleges on appeal that he was
forced into retiring from the agency. Since appellant has clearly raised
an allegation of constructive discharge, we find that the allegations
in the instant allegations have not necessarily been rendered moot
by his retirement, i.e., should appellant prevail on his allegation
of constructive discharge, he would be entitled to reinstatement, and
workplace remedial relief would then be available for him. Consequently,
we find that the issue of constructive discharge must be remanded for
appellant to be given the opportunity to seek EEO counseling thereon.
The Commission advises the agency that if appellant seeks EEO counseling
regarding the constructive discharge allegation within the period provided
in the Order below, the date appellant filed the appeal statement in
which he raised this allegation for the first time shall be deemed to
be the date of the initial EEO contact.
The agency issued a finding of no discrimination on allegation (2).
In view of our determination herein that the other ten allegations of
appellant's complaint were improperly dismissed as moot, we find that the
merit determination regarding allegation (2) should be vacated. Given
appellant's outstanding allegation of constructive discharge, as well as
his harassment claim, we find that appellant's complaint should not be
fragmented or determined in a piecemeal manner. See Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency
should not ignore the "pattern aspect" of a complainant's allegations and
define the issues in a piecemeal manner where an analogous theme unites
the matter complained of). Accordingly, we find that the agency's final
decision finding no discrimination with regard to allegation (2) must be
remanded for inclusion in the further processing of appellant's complaint.
Accordingly, the agency's decision dismissing allegations (1) and
(3) through (11) on the grounds that they were rendered moot is hereby
REVERSED. The agency's finding of no discrimination regarding allegation
(2) is hereby VACATED. Allegations (1) through (11) are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to take the following action:
(1) The agency shall provide appellant with the opportunity to obtain
EEO counseling for the allegation regarding constructive discharge
and to amend his complaint to include the same. Within fifteen (15)
calendar days of the date this decision becomes final, the agency shall
notify appellant that he has fifteen (15) calendar days from receipt
of the agency's notification to contact an EEO Counselor. Thereafter,
should appellant amend his complaint, the agency shall decide whether to
process or to dismiss the complaint in accordance with the regulations
set forth in 29 C.F.R. �1614.102 et seq.
(2) If appellant does not pursue his allegation of constructive
discharge, the agency shall resume processing of the remanded complaint,
including his claim for compensatory damages, from the point processing
ceased. Pursuant thereto, the agency shall forward appellant's complaint
to an EEOC Administrative Judge for scheduling of a hearing in accordance
with 29 C.F.R. �1614.109. The agency shall acknowledge to appellant
that it has received the remanded allegations and is reinstating the
matters for processing within forty-five (45) calendar days of the date
this decision becomes final.
A copy of the agency notice providing appellant with the opportunity
to obtain EEO counseling and to amend his complaint on the allegation
of constructive discharge, and a copy of the agency's letter of
acknowledgment to appellant, and a copy of the correspondence that
transmits appellant's case to the Administrative Judge 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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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.
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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations