Donald L. Milburn, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionMay 11, 2000
01995297 (E.E.O.C. May. 11, 2000)

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.