0120122718
07-31-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120122718
Hearing No. 520201100396X
Agency No. HSUSCG181162010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 17, 2012, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Non-Appropriated Fund, (NAF) Educational Technician at the Agency's Otis Air Force Base in Cape Cod, Massachusetts.
On October 26, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (64) when she was not selected for the position of Education Technician, GS1702-5 pursuant to Job Announcement Number: 10-1757-NE-DW-D-DEU.
The record in this matter indicates that from April 21 2010 to May 5, 2010, the Agency advertised the position at issue. Complainant applied, was found qualified and interviewed for the position, but was not selected. The record discloses that on July 27, 2010, two other candidates ages 27 and 23 were selected to fill the two vacancies advertised under the announcement. The record indicates that the Agency issued a second job announcement for another vacant education technician position. On October 28, 2010, Complainant was recommended to fill the position and effective December 5, 2010, Complainant was selected for the position of Education Technician, GS-5 at Otis Air Force Base pursuant to the new Job Announcement Number: 1-1000-NE-TB-D. The record further indicates that there was no difference in salary or benefits between the NAF position Complainant held before the non-selection, the advertised Education Technician GS-5 position for which she was not selected, and the second advertised Education Technician GS-5 position for which she was selected effective December 5, 2010.
The Agency accepted the complaint, investigated the matter and Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 11, 2012, the AJ issued an Order of Dismissal finding that the complaint was appropriate for dismissal as moot in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(5). On May 17, 2012, the Agency issued a final order fully implementing the decision of the AJ.
This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
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. Dep't 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 AJ properly dismissed the instant matter on the grounds of mootness. Specifically, we are persuaded by the AJ's finding that the effects of any alleged discrimination have been eradicated and there is no reasonable expectation that the alleged violation will recur. The record demonstrates that the Agency recommended and selected Complainant for the same position of Education Technician, GS-5, for which she was previously non-selected. Complainant assumed the position on December 5, 2010, with the same salary and benefits as the position for which she was not selected. Complainant suffered no loss of pay or benefits as a result of the non-selection. Moreover, the record indicates that the position for which she was selected is at the same location with the same grade as the position she originally sought. For the reasons set forth herein, it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.
In addition, we find that there is no evidence that Complainant claimed any compensatory damages in the complaint at issue or on appeal. Moreover, compensatory damages are not available for claims arising under the Age Discrimination in Employment Act of 1967. Falks v. Department of the Treasury, EEOC Request No. 05960250 (Sept. 5, 1996) (citation omitted).
CONCLUSION
Accordingly, based on the foregoing, we find that the Agency's final action implementing the AJ's dismissal of the complaint on the grounds of mootness is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 31, 2014
__________________
Date
2
0120122718
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122718