Arthur J. O' Leary, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01990550 (E.E.O.C. Dec. 28, 2000)

01990550

12-28-2000

Arthur J. O' Leary, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Arthur J. O' Leary v. Department of Health and Human Services

01990550

December 28, 2000

.

Arthur J. O' Leary,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01990550

Agency No. HCF-024-96

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated September 21, 1998, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his

complaint, complainant alleged that he was subjected to discrimination

on the basis of age (59) when:

On August 8, 1995, management removed complainant from the position of

Associate Regional Administrator (ARA), Division of Medicaid and he was

detailed to unclassified duties.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness.

Specifically, the agency noted that complainant's detail ended on

October 28, 1996, and he was returned to his permanent position as

Program Manager or Associate Regional Administrator/ARA, GS-340-15.

In addition, the agency stated that complainant suffered neither loss of

pay nor benefits during his detail/reassignment. The agency noted that

the official responsible for complainant's detail/reassignment retired

effective October 3, 1996. Finally, the agency stated that although

complainant requested $125, 000 for the pain and suffering he experienced,

compensatory damages are not available under the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

Thus, the agency concluded that interim events, i.e. complainant's return

to his former position and the retirement of the responsible management

official, have rendered complainant's complaint moot.

On appeal, complainant argues that his complaint should not be dismissed

as moot. Complainant claims that there is a reasonable expectation that

the alleged violation could recur. Specifically, complainant notes

that in 1997, a Black female manager eight to ten years older than him

was removed from her position as Deputy Regional Administrator, detailed

to unclassified duties, and treated in a demeaning manner. In addition,

complainant argues that interim events have not completely eradicated the

effects of the alleged violation. Complainant states that his removal

from his former position and the subsequent detail negatively effected

his professional reputation. Complainant claims that in January 1997,

when he applied for the position of Assistant Commissioner of Health,

the subject of his removal/detail was brought up at the interview.

Complainant states that although he does not know whether the removal

action was the deciding factor in his non-selection, the fact that the

removal was brought up during the selection interview shows that it was

a factor in the selection decision.

The record reveals that on August 8, 1995, complainant was orally

informed that he was being removed from his position as Associate Regional

Administrator, Division of Medicaid and was being detailed to unclassified

duties in the Office of Regional Administrator. In a September 11,

1995 memorandum, the Regional Administrator provided written notice of

complainant's detail and stated that the primary reason for the detail

was complainant's failure to follow instructions. In addition, in the

memorandum the Regional Administrator called complainant �insubordinate�

and said he no longer had confidence in complainant's ability to carry

out the duties of ARA. The record shows that complainant continued to

receive the same salary as before the detail but had no assigned duties.

In his formal complaint, complainant requested as relief (1) $125,000 for

pain and suffering, (2) an Intergovernmental Personnel Assignment (IPA)

or restoration to the ARA position, and (3) a letter of commendation.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for

the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in complainant'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.

Upon review of the record, we find that the agency improperly dismissed

complainant's complaint for mootness. While the agency correctly

stated that compensatory damages are unavailable for discrimination or

retaliation claims under the ADEA, we find that interim events have

not completely and irrevocably eradicated the effects of the alleged

discrimination. Falks v. Department of the Treasury, EEOC Request

No. 05960250 (September 5, 1996). If complainant were to prevail on

his complaint, he would be entitled to the expungement of the detail from

all records. Therefore, we find that the subject complaint has not been

rendered moot by the completion of the detail assignment. Accordingly,

the agency's decision to dismiss complainant's complaint is REVERSED.

The complaint is REMANDED to the agency for further processing in

accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

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 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 (K0900)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 28, 2000

__________________

Date