01992049
02-09-2000
Donnie E. Price, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Donnie E. Price, )
Complainant, )
)
v. ) Appeal No. 01992049
) Agency No. 97-1507
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
We find that the agency's December 14, 1998 decision dismissing the
complaint on the grounds of mootness is not proper pursuant to the
provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(5).<1>
The record shows that Complainant filed a formal complaint claiming that
he had been discriminated against on the bases of race and sex when: (a)
he was harassed or subjected to adverse working conditions as evidenced
by the instigation in February 1996, by the Chief of Pharmacy Service,
of surveillance of his activities; (b) he was issued a notice of proposed
removal on May 15, 1996; and, (c) he was charged AWOL in February 1996.
The agency issued a final decision dismissing the complaint on the
grounds of mootness after finding that: the proposed removal was not
implemented; Complainant was placed in regular duty status for the hours
he had been charged AWOL and he was then issued the appropriate pay;
and the surveillance in question failed to render Complainant aggrieved.
On appeal Complainant contends that the surveillance in question was
directed exclusively at him, a black male. He also contends that after
the surveillance ended, the agency still went through his leave records
�trying to build another case against� him. Complainant further contends
that only he was charged AWOL, although there was another �non-black
pharmacist� that worked with him the night in question. Complainant
also argues that although the removal was not implemented, he �had to
suffer over a year before the decision� not to remove him was issued.
Finally, he claims that he is not in the same position he was at the
time of the alleged discriminatory incidents because in order to protect
his employment, he �had to borrow money from friends and family to hire
a lawyer�. Moreover, on appeal, Complainant indicates that he is entitled
to compensatory damages and requests that he be �made whole.�
EEOC Regulations provide in relevant part that an agency shall dismiss a
complaint that is moot. The United States Supreme Court has held that a
discrimination complaint is moot when: (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 violation. County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979). Under such circumstances, no relief
is available and thus there is no need for a determination of the rights
of the parties. Id.
A review of the record does not support the dismissal of the complaint.
In claim (a), Complainant stated that he had been harassed by
surveillance ordered by the Chief of Pharmacy Service. The agency found
that this claim was moot because Complainant had not been aggrieved by
the surveillance in question. In other words, the agency found that
Complainant had failed to state a claim under EEOC Regulations as a
result of being unable to show that he had been harmed by the alleged
discriminatory event. However, on appeal, Complainant stated that the
surveillance was meant exclusively for his actions and not the actions
or conduct of �non-black employees�.
We find that this claim is sufficient to state a claim under our
regulations. The only questions for the agency to consider are whether
the complaint alleges employment discrimination on a basis covered
by EEO statutes and if the Complainant claims that he was aggrieved.
If so, the agency must accept the complaint for processing, regardless
of what it thought of the merits. Odoski v. U.S. Department of Energy,
EEOC Appeal No. 01901496 (April 16, 1990). Accordingly, claim (a)
was improperly dismissed by the agency.
Concerning claims (b) and (c), the agency found that these claims were
moot because Complainant was paid for the hour he was charged AWOL and
because the proposed removal was not implemented. However, a fair reading
of the complaint and the appeal shows that Complainant also claimed that
after the surveillance in question ended, the agency was still trying
to build another case against him by going through his leave records.
Therefore, contrary to the agency's arguments, we find that the agency
has been unable to show that there is no reasonable expectation that
the alleged violations will recur. Moreover, we note that on appeal,
Complainant states that he �suffered over a year�, that he be �made
whole�, and that he is entitled to compensatory damages. If Complainant
prevails on his complaint, the possibility of an award of compensatory
damages exists. Therefore, Claims (b) and (c) may not be dismissed
on the basis of mootness. Glover v. USPS, EEOC Appeal No. 01930696
(December 9, 1993).
In summary, the dismissal of the complaint was improper and is hereby
REVERSED. The complaint is REMANDED for further processing in accordance
with this decision and applicable regulations.
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
February 9, 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:
__________ ___________________________________
1 On 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.