0120065308
02-08-2007
Alejandro Gasmen, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Alejandro Gasmen,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200653081
Agency No. 06-62478-003
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 28, 2006, dismissing his formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In the instant complaint, filed on March 24, 2006 , complainant claimed
that he was subjected to a hostile work environment on the bases of
national origin, sex, color, disability, and age when:
a. on September 15, 2005, he was issued a proposed suspension for seven
calendar days, for failure to follow proper leave procedures and for
unauthorized absence;
b. from September 3, 2005 to September 17, 2005, due to staffing shortage,
he worked alone on the night shift and worked a total of 131 hours,
41 hours of which were on overtime;
c. from September 1, 2005 to September 15, 2005, he was harassed by his
work leader who accused him of being "slow, incompetent and making wrong
decisions," and said "Filipino men are stupid who do not know what is
right and how to work;"
d. from September 3, 2005 to September 15, 2005, when he was unable to
call-in sick due to his medication, his work leader refused to accept
the calls from his wife who was calling in for him;
e. on September 18, 2005, he was charged Absence Without Official Leave
(AWOL) because his work leader changed his shift without notifying him2;
and
f. his requests on March 7, 2005 and September 20, 2005, to be transferred
somewhere or to be retired on medical have not been acted out.
In its August 28, 2006 final decision, the agency dismissed the
instant complaint pursuant to 29 C.F.R. � 1614.107(a)(5), on the
grounds of mootness. Specifically, the agency determined that because
complainant's disability retirement application was approved, his
formal complaint was rendered moot. The agency further determined
that after a review of complainant's request for compensatory damages,
including objective evidence submitted by complainant during counseling,
management notified complainant that they would not compensate him for
the damages he claimed.
Upon review, the Commission determines that this complaint has not been
rendered moot because at a minimum, complainant has requested compensatory
damages. EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the
agency shall dismiss a claim that is moot. To determine whether the
issues raised in a complaint remain in dispute, it must be ascertained:
(1) if it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur, and (2) if the interim
relief or events have completely and irrevocably eradicated the effects of
the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
Assuming arguendo that complainant 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 a claim cannot
be dismissed as being moot. The agency must address the issue of
compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages and that the damages are related to
the alleged discrimination. See Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), request to reconsider, EEOC
Request No. 05930306 (February 1, 1993). Because complainant indicated
he was seeking compensatory damages in this matter, the agency, prior
to dismissing the complaint, should have affirmatively requested that
complainant provide objective proof of the alleged damages incurred and
a link between those damages to the alleged discriminatory actions. See
Benton v. Department of Defense, EEOC Appeal No. 01932422 (December 10,
1993); Roubachewsky v. Department of the Navy, EEOC Request No. 05960184
(January 6, 1997). The record does not establish that this occurred.
Clearly, it is the burden of the agency to have evidence or proof in
support of its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991). Based on the foregoing,
we find that the agency erred in dismissing the complaint pursuant to
29 C.F.R. � 1614.107(a)(5).
The agency's final decision dismissing complainant's complaint on the
grounds of mootness is REVERSED. The complaint is REMANDED to the agency
for further processing in accordance with this decision and the ORDER
below.
ORDER (E0900)
The agency is ordered to process the remanded claim of a discriminatory
hostile work environment in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to the complainant that it has received the
remanded claim 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
February 8, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 In its final decision, the agency inadvertently identified the date of
alleged discriminatory event as September 16, 2005 instead of September
18, 2005.
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0120065308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120062666
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0120065308