0120081365
05-28-2008
Barbara Williams-Meade, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Barbara Williams-Meade,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081365
Agency No. 200406522007101782
Hearing No. 430-2008-00006X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 28, 2007, dismissing her 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. The agency dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(5), for mootness.
In her complaint, complainant alleged that she was subjected to hostile
workplace discrimination on the bases of race (Caucasian), sex (female),
disability (mental/physical), age (48), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964, when she was
charged sick leave instead of annual leave, resulting in her forfeiture
of fifty-six (56) hours of annual leave.1
The record discloses that upon completion of the investigation, the agency
provided complainant a copy of the investigative report. Complainant then
requested a hearing. The Commission assigned an Administrative Judge
(AJ) in this matter. On November 21, 2007, the agency submitted to the
AJ its Motion to Dismiss. The agency explained that subsequent actions
taken by it served to render complainant's leave claim moot. The agency
quoted complainant's testimony before the agency EEO investigator,
wherein complainant admitted that her leave record had been corrected
and all issues related to her leave resolved. The AJ issued a Dismissal
Order on December 12, 2007, observing that "during the investigation of
the complaint, complainant conceded that her leave record was corrected."
The AJ thus affirmed the agency's finding that complainant's leave claim
is moot, and no relief is available for complainant.
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.
We disagree with the dismissal for mootness in this case. The Commission
has long held that an otherwise viable complaint cannot be moot if
compensatory damages have been claimed. See Howard L. Glover v. United
States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993); Lisk
v. Department of the Army, EEOC Request No. 05950896 (April 10, 1997).
The record reflects that complainant claimed compensatory damages from the
point at which she underwent EEO Counseling. Complainant also emphasized
her repeated requests for compensatory damages in her appeal statement,
asserting that she "has suffered emotional distress at having to file
a complaint in order to recover the leave."
Therefore, we reverse and remand this matter consistent with the ORDER
below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall focus on the complainant's opportunity to make a showing that she
is entitled to compensatory damages concerning her leave claims only.
The agency shall place an affidavit from complainant detailing her claims
for compensatory damages in the record, as well as collecting affidavits
from relevant witnesses identified by complainant and other documentary
evidence. Thereafter, the agency shall either issue a final decision
dismissing the claim with an adequate written justification or awarding
complainant compensatory damages in this matter. The supplemental
investigation and issuance of the final decision must be completed within
60 calendar days of the date this decision becomes final. A copy of the
final decision must be submitted to the Compliance Officer, as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
May 28, 2008
__________________
Date
1The record reflects that the Administrative Judge (AJ) properly
affirmed the agency's dismissal of complainant's remaining claims based
on untimely EEO contact. The record contains an affidavit from the
agency's EEO Program Manager (EPM) stating that complainant initially
met with her in September 2006 to discuss workplace issues. The EPM
asserted that complainant told her at that time that she did not want to
initiate an EEO complaint, but rather desired an opportunity to mediate
her concerns. The EPM informed complainant that if she ever wanted to
file a complaint, she would have to do so within 45 days of the alleged
discriminatory action. The record also reflects that the EPM provided
complainant a copy of a pamphlet produced by the agency's Office of
Resolution Management. The pamphlet included information about the EEO
complaint process, including the requirement that a complainant contact
an EEO counselor within 45 days of the alleged discriminatory event.
While the record shows that various claims alleged by complainant spread
well into November/December 2006, complainant, however, made initial
contact with the agency's EEO Counselor and pursued her claims on March 8,
2007, several days beyond the 45-day limitation period.
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0120081365
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081365