02970017
09-30-1999
Esther M. Foster, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Esther M. Foster, )
Appellant, )
)
v. ) Appeal No. 02970017
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
On June 17, 1997, Esther M. Foster (the appellant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission) from
a final (third-step) agency decision dated May 23, 1997, concerning her
grievance filed against the Department of the Army (the agency) dated
April 25, 1997. In her grievance, appellant alleged that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the record contains sufficient information
to permit a determination by the Commission as to whether the agency
unlawfully discriminated against appellant based on race (black), color
(black) and reprisal (prior EEO activity) when she was temporarily
detailed to another position within her division.
BACKGROUND
Appellant filed a grievance on April 25, 1997, regarding her temporary
detail to a different position. Appellant was employed by the Army
Corps of Engineers as a Procurement Technician (GS-5) in the Public
Works Acquisition Branch, Contracting Division. On April 4, 1997, she
was temporarily detailed to the position of Procurement Technician in
the Business Support Branch, Contracting Division. In her grievance,
appellant alleged that she did not receive the same work opportunities
and promotions that had been afforded to her two white co-workers, and
that the detail was caused by her asking for those same opportunities.
She also alleged that she was performing the same work as her two white
co-workers, even though she was classified at a lower grade than either
of them (GS-6 and GS-7).
In the third-step decision, the agency official denied appellant's
grievance. He did not address appellant's allegations of discrimination.
The second-step decision also did not address appellant's discrimination
allegations. This appeal followed. Appellant did not submit any
arguments in support of her appeal.
In response to appellant's appeal, the agency argued that the appeal
was moot because appellant had signed an agreement to voluntarily accept
the reassignment on a permanent basis on July 7, 1997. It also argued
that appellant had not specified in her grievance how the temporary
detail was discriminatory, that appellant had suffered no harm from the
reassignment, and that appellant had not established a prima facie case
of discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.401(c) provides that a grievant may appeal
to the Commission from a final decision of the agency, the arbitrator
or the Federal Labor Relations Authority on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised.
We find, however, that the third-step agency decision on appellant's
grievance did not address the merits of appellant's discrimination
allegations. We also find that, apart from appellant's contentions, the
record contains insufficient evidence upon which to make a finding on
the merits of appellant's grievance. Because of the lack of relevant
record evidence and our inability to render a determination on the
merits of appellant's allegations of discrimination, we hereby remand the
grievance to the agency for a supplemental investigation into appellant's
allegations of discrimination. See Batchelor v. Department of the Air
Force, EEOC Request No. 05930671 (December 23, 1993); Kerr v. Department
of the Army, EEOC Request No. 05930012 (July 9, 1993); Ricks v. Department
of Health and Human Services, EEOC Appeal No. 02960014 (June 16, 1997).
After the investigation has been completed, the agency shall issue
a new final decision regarding the issues of discrimination raised in
appellant's grievance and shall provide appellant with appropriate appeal
rights pursuant to 29 C.F.R. �1614.401(c).
On appeal, the agency argued that appellant's claim is moot because
she had accepted the reassignment on a permanent basis. 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
clearly requested compensatory damages in her grievance. Therefore,
on remand, the agency cannot dismiss appellant's allegations of
discrimination on this basis, unless it shows that appellant is not
entitled to damages.
Accordingly, the decision of the agency is VACATED and REMANDED for
further processing in accordance with this decision and the proper
regulations.<1>
ORDER
On remand, the agency is ORDERED to conduct a supplemental investigation
into appellant's allegations that she was discriminated against on the
basis of her race, color and reprisal. The investigation shall include
the following information:
1) an affidavit(s) from the relevant supervisory personnel explaining
why appellant was temporarily detailed to a different position; and,
2) any other relevant information and documentation regarding
appellant's allegations that she was treated differently than her two
white co-workers.
The agency shall allow appellant to provide a response to the new
information contained in its supplemental investigation. The agency will
also request from appellant objective evidence of the harm suffered and
the causation between the damages and the alleged violation, in order
to establish whether she is entitled to compensatory damages if she
proves discrimination.
Upon completion of the investigation, the agency shall issue a new
third-step grievance decision which expressly addresses appellant's
discrimination claims. The supplemental investigation and issuance of
the final grievance decision must be completed within sixty (60) calendar
days of the date that this decision becomes final. A copy of the final
decision 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:
___09-30-99___ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 In Esther M. Foster v. Department of
the Army, EEOC Appeal No. 02970027, appellant appealed a third-step
grievance decision in which the agency found that there was no
evidence of discrimination in the record. Unlike that case, the
record in the present appeal does not contain a sufficient amount
of relevant information that would enable the Commission to make
a fully considered decision on the information before it.