01981619_r
01-07-1999
Denese M. Merritt, Appellant, v. Madeline K. Albright, Secretary, Department of State, Agency.
Denese M. Merritt, )
Appellant, )
)
v. ) Appeal No. 01981619
) Agency No. 97-47
Madeline K. Albright, )
Secretary, )
Department of State, )
Agency. )
______________________________)
DECISION
On December 23, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on December 6, 1997,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The agency characterized appellant's complaint
as alleging that she was subjected to discrimination in reprisal for
prior EEO activity when:
On an unspecified date appellant's former supervisor (S1) made several
telephone calls to appellant's office in an attempt to speak with
appellant; and
S1 informed appellant's office that he would make a visit, which he did,
but appellant departed and did not see him.
The agency dismissed appellant's complaint pursuant to EEOC Regulation 29
U.S.C. �1614.107(e), on the grounds that it was rendered moot because: (A)
management took appropriate action when appellant reported the incidents
by curtailing S1's overseas assignment and returning him to the United
States; and (B) appellant was no longer an employee of the agency.
On appeal, appellant contends that she is currently an employee of the
agency, and in support of this contention, provided a current copy of
her pay statement. Additionally, appellant asserts that although S1 may
be retiring, he previously indicated that he would still do work at the
agency as an independent contractor. Therefore, appellant contends that
she may still be in contact with him. Finally, appellant argues that
the FAD failed to address her allegations of sexual harassment which
occurred in and around June 1996.
In response, the agency acknowledges that appellant raised allegations
of sexual harassment stemming from S1's behavior on and after June 8,
1996, but argues that when appellant's complaint was dismissed, she had
left the agency to return to school, and, effective January 2, 1998,
S1 retired from the agency with no re-employed annuitant or personal
service contract relationship.
The Commission notes that the record contains a statement by appellant
detailing her allegations of sexual harassment by S1 which began on June
8, 1996, and continued until S1's transfer. In the statement, appellant
alleged that she felt �stressed�, �frightened�, and �uncomfortable� as
a result of S1's actions.
The Commission also notes that the agency failed to address appellant's
allegation concerning the acts of sexual harassment to which she was
subjected by S1 from June 8, 1996, until his transfer, and the Commission
deems the agency's action to be tantamount to a dismissal of that matter.
The agency's submissions on appeal reveal that the EEO Office was notified
of the issue, and appellant referenced the matter in her formal complaint.
Accordingly, the agency's dismissal of appellant's allegation concerning
S1's acts of sexual harassment is REVERSED, and that allegation is
REMANDED to the agency for further processing in accordance with the
Order below.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
In the present case, there appears to be some question as to whether
the retirement of S1 has totally removed the alleged harasser from
the workplace since he purportedly informed appellant that he would
be working as an independent contractor. Furthermore, it appears that
appellant may be requesting compensatory damages.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence
that she has incurred compensatory damages, and that the damages
are related to the alleged discrimination. Jackson v. USPS, EEOC
Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). Should appellant
prevail on this complaint, the possibility of an award of compensatory
damages exists. See Glover v. USPS, EEOC Appeal No. 01930696 (December
9, 1993). Because appellant raised the issue of compensatory damages
when describing the effects of the alleged sexual harassment, the agency
should have requested that appellant provide some objective proof of the
alleged damages incurred, as well as objective evidence linking those
damages to the adverse actions at issue. See Benton v. Department of
Defense, EEOC Appeal No. 01932422 (December 10, 1993). Accordingly,
we find that the agency erred in dismissing allegations (1) and (2) in
appellant's complaint on the grounds that they were rendered moot, and,
therefore, the agency's final decision is REVERSED. Allegations (1) and
(2) are REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Jan. 7, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations