01994211
01-10-2000
Ernest Dahl, )
Complainant, )
)
v. ) Appeal No. 01994211
) Agency No. DON-FY-63394-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On April 26, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on April 12, 1999, pertaining
to a 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 the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq.<1> The Commission accepts complainant's
appeal in accordance with EEOC No. 960, as amended.<2>
As the record reflects, complainant initiated contact with an EEO
Counselor on December 29, 1998. During the counseling period, complainant
alleged that he was the victim of unlawful employment discrimination
when he was given a ultimatum by his supervisor to either retire or be
delegated assignments that he could not accomplish and consequently be
fired.
On February 17, 1999, complainant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the basis of
his age. Complainant's complaint was comprised of the matters in which
he underwent EEO counseling, discussed above.
On April 12, 1999, the agency issued a final decision, dismissing
complainant's complaint for mootness. The agency found that since
complainant was transferred to another department, with a different
supervisor and chain of command, the effects of any alleged discrimination
have been completely eradicated and there is no reasonable expectation
that the alleged violation will recur.
On appeal, complainant asserts that the interim relief did not
completely and irrevocably eradicate the effects of the discrimination.
Specifically, complainant alleges that the transfer was to a less
prestigious and lower level position.<3> Furthermore, in his complaint
and within his statement in support of his appeal, complainant requests
compensatory damages for the alleged discrimination.
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 complainant'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); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented. However,
when a complainant requests compensatory damages, the Commission has
determined that an agency may not dismiss a EEO complaint on mootness
grounds because of the potential for additional relief in the event the
complainant were to prevail on the merits of the complaint. See, Pritt
v. U.S. Postal Service, EEOC Request No. 05950792 (July 3, 1997); Jackson
v. U.S. Postal Service, EEOC Request Appeal No. 01923399 (November 12,
1992), request to reopen denied, EEOC Request No. 05930306 (February 1,
1993).
In the case at bar, without discussing whether or not the interim
relief completely and irrevocably eradicated the effects of the alleged
discrimination and whether there exists no reasonable expectation that
the alleged violation will recur, complainant's complaint has not been
rendered moot because, at a minimum, the agency failed to address his
claim for compensatory damages
and should complainant prevail on his complaint, the possibility of an
award of compensatory damages exists. Accordingly, the agency's final
decision is REVERSED and complainant's complaint is hereby REMANDED to
the agency for further processing in accordance with the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded complaint 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 claims 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:
January 10, 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 of mailing. I certify that
the 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.
2Since the agency did not supply a copy of a certified mail return receipt
or any other material capable of establishing the date complainant
received the agency's final decision, the Commission presumes that
complainant's appeal was filed within thirty (30) days of receipt of
the agency's final decision. See, 29 C.F.R. �1614.402.
3Complainant, by letter dated March 3, 1999, informs the agency that the
job he has been transferred to is of a lesser position and he feels it
is the product of his underlying discrimination complaint.