01995297
05-11-2000
Donald L. Milburn, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Donald L. Milburn, )
Complainant, )
)
v. ) Appeal No. 01995297
) Agency No. 9-05-046
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
______________________________)
DECISION
On February 28, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his 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. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
The record reflects that on August 6, 1998, complainant initiated EEO
Counselor contact, claiming that he had been discriminated against on
the basis of physical disability when his supervisor continuously denied
him the opportunity to serve as Acting Supervisor.
Subsequently, complainant filed a formal complaint claiming that he
had been discriminated against on the bases of physical disability and
reprisal when:
(1) Complainant was denied the opportunity to serve as Acting
Supervisor;
(2) On August 21, 1998, his government vehicle was reassigned;
(3) On September 4, 1998, he was given a disciplinary meeting; and,
(4) on December 3, 1998, he was issued a notice of proposed suspension.
On January 29, 1999, the agency issued a FAD. Therein, the agency
dismissed claim (1) on the grounds of mootness after the agency determined
that complainant served as Acting Supervisor twice between March 1998 and
the date that the EEO Counselor's summary report was prepared in August
1998.<2> The agency dismissed claims (2), (3), and (4) on the grounds
that complainant had failed to raise these issues with the EEO Counselor.
On February 26, 1999, the agency issued a second FAD, in response to
complainant's assertion that claims (2), (3) and (4) had indeed been
raised before an EEO Counselor. Therein, the agency again dismissed
claims (2), (3), and (4) on the grounds that they had not been addressed
with the EEO counselor.
On appeal, complainant argues that the agency's finding that he has
been given the opportunity to serve as Acting Supervisor, �is a false
statement�. Complainant further argues that the continued denial of
the opportunity to serve as Acting Supervisor prevents him from being
�considered for future supervisory positions�. Complainant acknowledges
that he was given the opportunity to serve as Acting Supervisor for two
hours, but that other employees are selected to serve for weeks.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) provides
that the agency shall dismiss a complaint that raises a matter that
has not been brought to the attention of an EEO Counselor and is not
like or related to a matter that has been brought to the attention of
a Counselor.
A review of the record reflects that claims (2), (3), and (4) were not
brought to the attention of the EEO Counselor during the processing of
complainant's informal complaint of discrimination. The Commission
determines, moreover, that these claims do not address a matter that
is like or related to any matter for which complainant underwent EEO
counseling. Accordingly, the agency's decision to dismiss these claims
was proper and is AFFIRMED.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(5)) provides that
the agency shall dismiss a complaint that is moot. To determine whether
the issues raised in a complaint are moot, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
The agency dismissed claim (1) as moot because complainant was
purportedly allowed to serve as Acting Supervisor. On appeal,
complainant acknowledges that he was allowed to serve for two hours
as Acting Supervisor, but argues that other employees are given the
opportunity to serve for weeks, and that the agency's policy precludes
his consideration for future supervisory positions. Based on the
foregoing, the Commission does not determine that interim relief or
events have completely and irrevocably eradicated the effects of alleged
discrimination. Accordingly, the Commission determines that the agency
has failed to show that claim (1) has been rendered moot. Accordingly,
claim (1) was improperly dismissed.
In summary, the dismissal of claims (2), (3), and (4) was proper and
is hereby AFFIRMED. The dismissal of claim (1) was not proper and
is hereby REVERSED. Claim (1) is REMANDED for further processing in
accordance with this decision and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
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 (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:
May 11, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT 1On
November 9, 1999, revised regulations governing the EEOC's federal sector
complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The final agency decision was inadvertently dated January 29, 1998.