01A05899_Leberknight
07-20-2001
Estate of Angela Leberknight, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Estate of Angela Leberknight v. Army and Air Force Exchange Service
01A05899
July 20, 2001
.
Estate of Angela Leberknight,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 01A05899
Agency Nos. 99.164 and 00.024
DECISION
INTRODUCTION
On September 12, 2000, complainant's estate filed a timely appeal from the
August 15, 2000, final agency action dismissing complainant's complaint
due to mootness. Upon review, the Commission finds that complainant's
complaint is not moot, as defined under 29 C.F.R. � 1614.107(a)(5).
Therefore, the agency's final action is vacated and the matter is remanded
for processing.
ISSUE PRESENTED
There are four distinct issues presented in this appeal:
(1) Whether the complainant's estate can bring an appeal on
complainant's behalf;
(2) Whether the complainant's estate can amend the appeal to include
a claim for compensatory damages;
Whether the AJ properly dismissed on grounds of mootness; and
Whether the AJ properly dismissed on the ground that the complained of
action was a �preliminary step.�
BACKGROUND
Complainant filed Equal Employment Opportunity (EEO) complaints on
September 29 and November 9, 1999. The complaints were consolidated
and the agency accepted two issues for investigation. The consolidated
complaint alleged that the agency had discriminated against complainant
based on sex and reprisal when the agency:
(1) Refused to pay complainant's expenses to transfer to another duty
station; and
(2) Eliminated complainant's then current position by a Reduction in
Force (RIF) and reassigned her as a trainer at the same duty location
after she filed her EEO complaint regarded issue 1.
After the agency completed its investigation, complainant requested that
an administrative judge (AJ) appointed by the Equal Employment Opportunity
Commission (EEOC) hold a hearing on the consolidated complaint. The EEOC
received the request for a hearing on May 20, 2000.
On June 16, 2000, the EEOC was notified that complainant had died in an
automobile accident on June 11, 2000. Shortly thereafter, the AJ issued
a decision regarding the consolidated complaint:
As to complainant's first claim, due to her untimely death and failure to
request compensatory damages, the AJ found that there was no outstanding
injury to be remedied. Therefore, the AJ determined that the allegation
was moot and should be dismissed.
Regarding complainant's second claim, the AJ noted that complainant had
accepted a reassignment before the RIF in question became effective.
Because complainant accepted the reassignment, and the RIF was not
effected, the AJ held that complainant was not subjected to any personnel
action that could form the basis for an EEO complaint. As such, the
AJ dismissed the second complaint.
On August 15, 2000, the agency issued its final agency action wherein
the agency fully implemented the AJ's decision without modification.
ANALYSIS AND FINDINGS
The first issue raised in this appeal is whether or not complainant's
estate can bring an appeal on complainant's behalf. EEOC case law has
routinely held that a complaint can survive the complainant's death.
See Hanley v. Department of Veterans Affairs, EEOC Request No. 0189026
(Apr. 11. 1989) (allowing the complainant's daughter and other heirs
to pursue the matter on complainant's behalf); Phillips v. Department
of the Air Force, EEOC Request No. 01910620, (Jan. 31, 1992) (noting
that complainant's estate, through complainant's legal representative,
may go forward with complainant's complaint of discriminatory treatment).
Accordingly, the Commission holds that in the present case, complainant's
estate may bring an appeal on complainant's behalf.
The second issue raised in this appeal is whether complainant may
amend his or her appeal to include a claim for compensatory damages.
A review of EEOC case law reveals that the Commission has clearly held
that a complainant may raise a claim for compensatory damages at any time
in the administrative process up to, and including, the appeal stage.
See Simpkins v. United States Postal Service, EEOC Request No. 05940887
(Sept. 29, 1995). As such, the Commission finds that complainant's
estate may amend its appeal to include a claim for compensatory damages.
The third issue on appeal is whether the AJ properly dismissed complaint's
claim for mootness. The Commission finds that, on its face, the AJ
decision dismissing complainant's complaint for mootness was proper
pursuant to both Commission regulations and established case law.
EEOC regulation 29 C.F.R. 1614.107(a)(5) mandates that prior to a
request for a hearing, an agency may dismiss a complaint that is �moot or
alleges that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory.� Furthermore,
in County of Los Angeles v. Davis, the U.S. Supreme Court held that �a
matter 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 or irrevocably eradicated the
effects of the alleged violation.� 440 U.S. 626, 631 (1979).
Accordingly, at the time the AJ issued its decision, there was no
reasonable expectation that the violation would recur due to the fact
that complainant was deceased. Moreover, the fact that complainant
was deceased completely and irrevocably eradicated the effects of the
alleged violation. Thus, the AJ issued the correct holding based on
the record at that time.
Presently, however, the Commission has allowed complainant's estate
to amend its appeal to include a claim for compensatory damages. The
Commission has consistently held that where a complaint states a claim
for compensatory damages, it may not be dismissed as moot. See Messer
v. Department of Defense, EEOC Request No. 05950362 (Aug. 30, 1996).
Therefore, the Commission finds that the present appeal is not moot.
The final issue is whether the AJ properly dismissed complainant's RIF
allegation, pursuant to 29 C.F.R. � 1614.107(a)(5) as a �preliminary
step.� The Commission has held that a complaint may not be dismissed as a
�preliminary step� when the �preliminary step� was taken for the purpose
of harassing the individual for a prohibited reason. See Rodriguez-Soto
v. Department of the Army, EEOC Request No. 05960646 (Oct. 8, 1998).
In the instant case, the AJ determined that the RIF was a �preliminary
step� as complainant accepted another job before the RIF was effectuated.
However, complainant alleges that the RIF was undertaken as a means
of retaliating against complainant for bringing an EEO complaint.
Complainant accepted another job only after complainant was threatened
by the RIF. Therefore, the present complaint may not be dismissed as
a �preliminary step� since the RIF was allegedly undertaken as a means
of retaliatory harassment. As such, the AJ improperly dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(5).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Washington
Field Office the request for a hearing within fifteen (15) calendar days
of the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 20, 2001
__________________
Date