0120130359
10-02-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130359
Agency No. ARWSMR12JUL03056
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated September 27, 2012, dismissing his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Automotive Maintenance Mechanic at the Agency's Maintenance Section facility in White Sands Missile Range, New Mexico.
On September 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic1), religion (Catholic), and disability (Diabetic) when:
1. On June 26, 2012, Complainant was suspended for 30 days for misuse of a government vehicle;
2. On an unspecified date, a management official (MO) yelled at Complainant and his personal representative;
3. On July 30, 2012, Complainant was ordered to attend a meeting with MO in which Complainant was the only employee ordered by MO not to leave the workplace area and was ordered to have a fitness for duty examination; and
4. Complainant was charged Leave Without Pay (LWOP).
The Agency characterized claim 2 differently, finding that Complainant was alleging that "on March 22, 2012 you were given an appraisal, which after filing a grievance on base system civilian evaluation, DA Form 7223, you allege you and your personal representative . . . were yelled at by [MO]." Following a review of the record we find that claim 2 is more accurately framed as above. The Agency dismissed claim 1 on the grounds of mootness, claim 2 for untimely EEO Counselor contact, claim 3 for failure to state a claim, and claim 4 on the grounds that the matter was not brought before the EEO Counselor and is not like or related to matters brought before the Counselor.
ANALYSIS AND FINDINGS
Claim 1
The Agency dismissed claim 1 on the grounds of mootness, noting that the 30 day suspension had been rescinded. 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.
The record reflects that Complainant has requested compensatory damages in the form of fees and expenses for his attorney/representative. The Commission has held that an 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. Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for reconsideration denied, EEOC Request No. 05930306 (Feb. 1, 1993). Should complainant prevail on this complaint, the possibility of an award of compensatory damages exists, to include attorney's fees and expenses. See Glover v. U.S. Postal Service, EEOC Appeal No. 01930696 (Dec. 9, 1993). Because Complainant requested compensatory damages, the Agency should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. U.S. Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (Dec. 3, 1993). As the Agency failed to address the issue of compensatory damages, we find that dismissal on the grounds that it was rendered moot was improper. See Rouston v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (Mar. 18, 1999).
On appeal, the Agency also argues that the claim should be dismissed for failure to state a claim on the grounds that, since the suspension was rescinded, Complainant was not harmed and therefore is not aggrieved, and hence fails to state a claim. Such an argument, however, goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII and the Rehabilitation Act. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Similarly, the Agency's argument on appeal that Complainant failed to state a claim of reprisal because he alleges retaliation based on "his filing a collective bargaining agreement grievance, not on any prior protected EEO activity he might have engaged in" Agency Appeal Brief, p. 5, is without merit because Complainant is claiming discrimination based on disability, race, and religion.
Claim 2
With regard to claim 2, we note that the Agency found that Complainant received his performance evaluation on or about March 22, 2012 and hence his August 2, 2012 Counselor contact was untimely. As noted above, however, we find that the Agency mischaracterized Complainant's complaint. We find that, while Complainant does mention his performance evaluation, he is offering that information merely as background information and instead he is alleging that, at a meeting to discuss his evaluation, MO yelled at him and his representative. Because Complainant has not provided a date for this incident we are unable to find that his Counselor contact was untimely. We further find, however, that the complaint fails to state a claim under the EEOC regulations because complainant failed to show that he was subjected to unwelcome verbal or physical conduct involving his protected classes, that the harassment complained of was based on his statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he shown he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Claims 3 and 4
With regard to claims 3 and 4, we note that the regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Service, EEOC Request No. 05891068 (Mar. 8, 1990). The record shows that Complainant did not raise the matters of being ordered: to attend a meeting; not to leave the workplace area; to have a fitness for duty examination; and being charged with LWOP, before the Counselor. Nor are these matters like or related to the matters raised before the Counselor. We therefore find that the Agency correctly dismissed these matters.
CONCLUSION
The Agency's Dismissal is AFFIRMED in part and REVERSED in part, and the matter of the rescinded 30-day suspension is REMANDED to the Agency for additional processing to address the matter of expenses for Complainant's representative in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (1) 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 (K0610)
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 77960, Washington, DC 20013. 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
October 2, 2014
__________________
Date
1 The Commission considers Hispanic to be a national origin and not a race. However, we use the definition provided by Complainant in his Formal Complaint.
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0120130359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130359