01990086
10-31-2000
Evangeline Z. Bates, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Evangeline Z. Bates, )
Complainant, )
) Appeal No. 01990086
v. ) Agency No. OD1C960021
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) concerning her allegation that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. The appeal is accepted by the Commission in accordance with 29
C.F.R. � 1614.405.<1>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's complaint.
BACKGROUND
During the period in question, complainant was employed as a Civilian
Personnel Officer, GM-201-14, at Offutt Air Force Base. In September
1996, complainant was tentatively offered a transfer into the position
of Supervisory Personnel Management Specialist, NM-12 (the Position),
at Howard Air Force Base in Panama. The record reveals that, several
days later, the offer was withdrawn. Complainant thereafter initiated
EEO counseling and filed a formal complaint in November 1996 alleging
discrimination based on national origin (Hispanic), sex, and reprisal.
In a final decision (FAD) dated August 28, 1998, the agency dismissed
the complaint on two grounds. First, it found that the complaint failed
to state a claim, noting that, among other things, complainant had not
alleged that the official who denied the transfer was the individual
who had discriminated against her. In this regard, complainant
alleged that the denial was discriminatory because it was based on the
�Unsatisfactory� rating she received on her 1996 performance appraisal.
The record reveals that the agency found that rating to be retaliatory
in Case No. OD1C960010.
Second, the FAD determined that complainant's complaint was moot under
the theory that, because Howard AFB was scheduled to close in six months,
the Position would no longer exist. The FAD found further that, although
complainant had requested compensatory damages, any damages to which
she would be entitled were �covered by an award of damages for the
same time period as a result of an administrative claim [complainant]
made against [her] former supervisor.� This finding appears to refer
to Case No. OD1C960010, in which the agency awarded complainant $1,000
in compensatory damages for the finding of retaliation regarding her
1996 appraisal.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's Federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994). EEOC Regulation 29 C.F.R. �1614.107(a)(1)
provides that an agency shall dismiss a complaint that fails to state
a claim under �1614.103.
In this case, we find that the action challenged by complainant, i.e.,
denying her request to transfer into the Position, was sufficient to
render her aggrieved. Not only was the Position a different position
in a different location, but complainant has set forth sufficient
facts to indicate that, by being denied the transfer, she was deprived
financially in the form of salary and other benefits. For this reason,
we also reject the FAD's determination that the complaint is moot.
Although the apparent closure of Howard AFB eliminates the possibility of
placing complainant into the Position, it is not apparent that she has
received the aforementioned benefits. Furthermore, the Commission has
held that a complaint is not moot when a complainant raises a claim for
compensatory damages and the agency fails to address the matter. See
Glover v. U.S. Postal Service, EEOC Appeal No. 01930696 (December
9, 1993). In this case, the agency did not address complainant's
compensatory damages claim prior to dismissing her complaint. Moreover,
its assertion that any damages to which complainant would be entitled
was covered by its award of damages in Case No. OD1C960010 is erroneous
insofar as that award was based exclusively on complainant's 1996
performance appraisal.
CONCLUSION
It is the decision of the Commission to REVERSE the FAD and REMAND
complainant's complaint in accordance with this decision and the
applicable regulations.
ORDER
The agency is ORDERED to process complainant's complaint in accordance
with 29 C.F.R. Section 1614.108. The agency shall acknowledge
to complainant that it has received the complaint 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 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 a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(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 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:
10-31-00
DATE Carlton Hadden, Director
Office of Federal Operations
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.