01982408
06-15-1999
Ernest A. Reid, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency
Ernest A. Reid v. Department of the Army
01982408
June 15, 1999
Ernest A. Reid, )
Appellant, )
) Appeal No. 01982408
v. ) Agency No. AHACFO9712H0010
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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. The final agency decision was dated January
21, 1998. The appeal was postmarked on February 2, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for mootness and failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on November 7, 1997, alleging
discrimination on the bases of race (black man's association with a white
woman) and color (light-brown). Appellant broadly alleged that from July
2, 1997 through September 22, 1997, he had been the subject of an illegal
investigation, his character and reputation were defamed, his privacy
was invaded, his credibility was ruined, his personal relationships
were affected, he was harassed by his manager and supervisors, he
was treated as a common criminal, his constitutional and civil rights
had been violated and he was falsely accused of committing a crime.
Appellant requested compensatory damages and legal fees.
The agency characterized appellant's complaint to be that he was subjected
to an illegal investigation into the alleged assault of a minor child
and that his complaint contained the following allegations:
1) he was never given a copy of the final investigative report;
2) he was informed by his supervisor that he was relieved from performing
his duties with his weapon until the completion of the investigation
(approximately 35 days), and
3) on July 17, 1997, management failed to respond to appellant's request
to be informed of the status of the investigation, and no update was
ever provided.
In its final agency decision, the agency dismissed the complaint.
Allegations 1 and 2 were dismissed for mootness. Allegation 1 was
said by the agency to be moot because appellant had seen a copy of the
report and a copy was attached to his complaint so the agency assumed
that appellant was in possession of a copy. Allegation 2 was said by
the agency to be moot because appellant had been placed back on duty
status with the use of his weapon. The agency dismissed allegation 3
for failure to state a claim, in that appellant had failed to allege
that an adverse action was taken against him because of discrimination.
The agency did not address the broader claims in appellant's complaint.
This appeal followed.
On appeal, appellant argued that these incidents could conceivably happen
again if management believes at some point in the future that appellant
is still involved with a white woman.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. �1614.107(e), an agency shall dismiss a complaint,
or portions thereof, when the issues raised are moot. An allegation
is moot only if (1) 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. Henderson
v. Department of the Treasury, EEOC Request No. 05940820 (August 31,
1995) (citing County of Los Angeles v. Davis, 440 U.S. 625 (1979)).
The Commission has held that where a timely claim for compensatory
damages is made, the agency cannot dismiss the complaint for mootness,
unless it can show that complainant is not entitled to damages.
Ellicker v. Department of Agriculture, EEOC Request No. 05931079
(September 22, 1994). Appellant has requested compensatory damages in
his complaint, consequently, the agency may not dismiss these allegations
because appellant may be entitled to additional relief. Therefore,
allegations 1 and 2 were improperly dismissed for mootness.
The Commission has previously held that when confronted with claims
involving multiple allegations, an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues
in a piecemeal manner where an underlying theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994), Ferguson v. Department of Justice,
EEOC Request No. 05970792 (March 30, 1999). In this case, appellant
had broadly alleged that he was discriminated against when the agency
conducted an investigation on him after the estranged husband of a
(white) co-worker accused appellant of assaulting their child, and that
this affected the terms and conditions of his employment.<1> Instead of
framing the issue to generally encompass appellant's claim, the agency
fragmented his claim and characterized some of the specific allegations
as separate and distinct claims, which it then dismissed.
The agency also did not address all of the specific examples of
discrimination that appellant alleged. In a letter dated December 15,
1997, responding to the agency's request for a clarification on his
allegations of discrimination, appellant provided fairly extensive
specific examples of how management had harassed him due to their
perception of his relationship with his co-worker. As examples of
how management invaded his privacy, appellant stated that he was under
constant scrutiny regarding his contact with the co-worker, and that
during the investigation he was asked several times about the nature of
his relationship with that co-worker. To specify how he was harassed
by his managers, appellant claimed that whenever he talked to a white
woman he was questioned as to why, even though customer service is part of
his job. These allegations, which the agency ignored, further illustrate
appellant's contention that his working conditions were affected by
management's actions and that he had been discriminated against.
Therefore, the Commission finds that the agency improperly dismissed
allegation 3 of appellant's complaint. The agency, on remand, will
address allegations 1, 2 and 3 in light of appellant's claim that he
was subjected to an illegal investigation due to his race and color.
The agency will also fully investigate all of appellant's allegations
that are relevant to this broader claim of discrimination.
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER (E1092)
The agency, on remand, will address appellant's allegations in light of
appellant's claim that he was subjected to an illegal investigation due
to his race and color, and will also fully investigate all of appellant's
allegations that are relevant to this broader claim of discrimination.
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:
June 15, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 A term, condition or privilege of employment has been held in Commission
decisions to include, inter alia, promotion, demotion, discipline,
reasonable accommodation, appraisals, awards, training, benefits,
assignments, overtime, leave, tours of duty, etc. Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997).