0120055720
02-02-2007
Frank E. Wyman, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Frank E. Wyman,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200557201
Agency No. 05-62204-001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 1, 2005, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), 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.
In a formal complaint, filed on October 14, 2004, complainant claimed
that he was subjected to discrimination on the bases of race (Caucasian),
age (D.O.B. 3/17/50), and in reprisal for prior EEO activity when:
a. on July 19, 2004, he became aware that the agency did not implement
the revised GS-0081 standards requirements for the Firefighters
positions;
b. on July 19, 2004, the statements provided by management regarding
his prior EEO complaint were not truthful;
c. on May 21, 2004, the Commission denied his request for reconsideration
for a prior complaint (Agency No. 03-62204-010);
d. on May 10, 2004, he became aware that management continues to deny
him modified duty (Agency No. 04-62204-001);
e. on May 10, 2004, the agency refused to process his formal
complaint;
f. on May 3, 2004, the Department of Defense Office of Complaints
Investigation (OCI) refused to supply him with the requested information;
g. on July 30, 2004, his request for Fire Office III and Instructor II
courses were denied;
h. on July 30, 2004, he became aware that when he was promoted to the
GS-07, step 5, his step should have been set at GS-07, step 10;
i. on May 21, 2004, he discovered a co-worker did not possess the
required driver's certification, and he claimed that management purposely
withheld him from driving "engines;" and
j. on May 3, 2004, management did not rotate the acting leader
position fairly.2
On February 16 and 28, 2005, the agency issued a partial dismissal.
The agency accepted for investigation claims (g) - (j). The agency
dismissed claim (a) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. Specifically, the agency determined that complainant
lacked standing because the crux of claim (a) was a generalized grievance.
The agency dismissed claims (b) - (f) pursuant 29 C.F.R. � 1614.107(a)(8)
on the grounds that in these claims, complainant claimed dissatisfaction
with the processing of two previously filed EEO complaints, identified
by the agency as Agency Nos. 03-62204-010 and 04-62204-001.
On August 1, 2005, the agency issued a final decision concerning claims
(g) - (j). Therein, the agency dismissed claims (g) - (j) on the
grounds of mootness pursuant to 29 C.F.R. � 1614.107(a)(5). The agency
determined that because complainant retired from agency employment, there
was no reasonable expectation that the alleged violation would recur,
and that interim events (complainant's retirement) completely irrevocably
eradicated the effects of the alleged discrimination. The agency stated
that if complainant felt that he was entitled to compensatory damages,
then he was to provide objective proof or evidence in support of his
request for compensatory damages within 15 days of receipt of the final
decision.
The agency also dismissed claims (g) - (j) on alternative grounds pursuant
to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate. The agency
determined that complainant did not respond to an investigator's letters
that requested clarification. The agency further found that complainant
did not respond to its request for clarification after complainant filed
the instant formal complaint without information that the agency deemed
adequate for its continued processing. Specifically, the agency noted
that in his formal complaint, complainant wrote "See Counselor Notes"
concerning his claims of discrimination.
Dismissal of claims (g) - (j): failure to cooperate
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides
that an agency may dismiss a complaint for failure to cooperate, or
alternatively, adjudicate the complaint if sufficient information for that
purpose is available. The regulation is applicable under the following
circumstances: (1) the agency has provided the complainant with a written
request to provide relevant information or to otherwise proceed with the
complaint; (2) the request included a notice of the proposed dismissal
for failure to respond within fifteen days of receipt of the request;
and (3) the complainant either fails to respond to the request within
fifteen days of receipt or the complainant's response does not address
the agency's request. The Commission has held that the regulation is
applicable, however, only in cases where there is a clear record of delay
or contumacious conduct by complainant. See Card v. United States Postal
Service, EEOC Request No. 05970095 (April 23, 1998); Anderson v. United
States Postal Service, EEOC Request No. 05940850 (February 24, 1995).
The agency stated that an EEO investigator had difficulty in meeting with
complainant, to proceed with the instant complaint. On June 9, 2005,
the investigator sent a letter to complainant and his representative
concerning an appointment on June 21, 2005, but neither complainant nor
his representative appeared on the day of the appointment. The record
reflects that on June 27, 2005, the investigator sent a letter of
interrogatory that provided complainant with the opportunity to make
a declaration concerning the accepted claims in the instant complaint.
On July 2, 2005, complainant's representative responded to the letter
of interrogatory by requesting a new appointment. On July 19, 2005,
the investigator contacted the representative by telephone and asked
if complainant would be available for an interview on July 22, July 25
or July26, 2005. Complainant's representative stated that she would
get contact him later. The record reflects that on July 22, 2005, the
investigator again contacted the representative on this matter, but that
the representative did not contact him for a possible alternate interview
date. On November 19, 2004, the agency sent a letter to complainant
requesting additional information but complainant did not respond to
its request. Specifically, the agency requested that complainant describe
an incident in which he felt that he was treated differently from other
employees based on his color, age and prior protected activity.
The Commission recognizes that the agency made various attempts to contact
complainant and his representative in an effort to obtain clarification
of the matters raised in the instant complaint. Despite these efforts,
the Commission nevertheless determines that complainant's actions are
not reflective of a clear record of delay, or of contumacious conduct.
Dismissal of claims (g) - (j): alternative grounds of mootness
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides for the dismissal
of a complaint, or portions thereof, when the issues raised therein
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)). When such circumstances exist, no relief is
available and no need for a determination of the rights of the parties
is presented. In cases involving compensatory damages, the Commission
has held that an agency must address the issue of compensatory damages
before it can dismiss a complaint for mootness. See Ness v. United
States Postal Service, EEOC Appeal No. 01981368 (November 21, 2000).
The agency first informed complainant in its final decision that if
complainant were claiming compensatory damages, he was to provide
objective evidence in support of his claim within fifteen days of
receipt of the final decision. However, we find no evidence in the
record indicating that prior to the issuance of the final decision,
the agency requested complainant to provide objective proof in support
of his compensatory damage claim. Consequently, we find that the
agency improperly dismissed claims (g) - (j) pursuant to 29 C.F.R. �
1614.107(a)(5). The Commission has held that an agency must address
the issue of compensatory damages when a complainant shows objective
evidence that he has incurred compensatory damages and that the damages
are related to the alleged discrimination. Jackson v. United States
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request
. for reconsideration denied, EEOC Request No. 05930306 (February 1,
1993). Should complainant prevail on claims (g) - (j), the possibility
of an award of compensatory damages exists. See Glover v. United States
Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).
Here, we find that the record indicates that complainant requested
compensatory damages, as reflected by a fair reading of requested
remedies in the EEO Counselor's Report. Because complainant requested
compensatory damages, the agency should have requested that complainant
provide some objective proof of the alleged damages incurred, as well as
objective evidence linking those damages to the adverse actions at issue.
See Allen v. United States Postal Service, EEOC Request No. 05970672
(June 11, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 3, 1993). As the agency did not properly address the issue of
compensatory damages, we find that the dismissal of claims (g) - (j) on
the alternative grounds of mootness was improper. See Routson v. National
Aeronautics and Space Administration, EEOC Request No. 05970388 (March
18, 1999).
Accordingly, the agency's final decision dismissing claims (g) - (j)
on the grounds of mootness and on the alternative grounds of failure
to cooperate is REVERSED. Claims (g) - (j) are REMANDED to the agency
for further processing in accordance with this decision and the ORDER
below.
Complainant is advised to cooperate with the agency in the continued
processing of these claims or face the possibility of future dismissal
for failure to cooperate.
Claim (a)
In two partial dismissals dated February 16 and 28, 2005, the agency
dismissed claim (a) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim, finding that complainant lacked standing because
the crux of this claim was a generalized grievance. In the case at
hand, complainant failed to show that he was aggrieved by the agency's
failure in implementing the revised GS-0081 standards requirements to
the Firefighters position. In essence, complainant's claim involves a
generalized grievance rather than any specific harm or loss to himself
with respect to a term, condition or privilege of employment. Therefore,
we find that the agency properly dismissed claim (a) for failure to
state a claim.
Claims (b) - (f)
In two partial dismissals dated February 16 and 28, 2005, the agency
dismissed claims (b) - (f) pursuant to 29 C.F.R. � 1614.107(a)(8) on the
grounds that complainant alleged dissatisfaction with the processing
of two previously filed EEO complaints, Agency Nos. 03-62204-010 and
04-62204-001.
Claims alleging dissatisfaction with the processing of a prior complaint
must be dismissed. See EEOC Regulation 29 C.F.R. � 1614.107(a)(8).
Dissatisfaction with the EEO process must be raised within the underlying
complaint, not a new complaint. See EEOC - Management Directive 110,
p. 5-23, 5-25 to 5-26 (November 9, 1999). A review of the record reveals
that claims (b), (c), (e) and (f) focus on complainant's dissatisfaction
with the processing of his prior EEO complaints (Agency No. 03-62204-010
and 04-62204-001). We therefore find that the agency properly dismissed
claims (b), (c), (e) and (f) pursuant to 29 C.F.R. � 1614.107(a)(8).
While the agency also dismissed claim (d) on the grounds that complainant
alleged dissatisfaction with the processing of a previously filed EEO
complaint, the Commission determines that this claim is more properly
analyzed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same
claim raised in his previous complaint. Specifically, we find that
complainant raised the same matter in his prior complaint, Agency
No. 03-62204-008, that has been decided by the Commission. Specifically,
the Commission issued a decision affirming the agency's finding of no
discrimination regarding the claim that in April 2002, complainant was not
placed on modified duty and was not offered an assignment in the agency
alarm room. Wyman v. Department of the Navy, EEOC Appeal No. 01A52704
(August 3, 2005). The Commission determines that the matter addressed
in the instant claim (d) is an elaboration of the above referenced claim.
Accordingly, the agency's dismissal of claims (a) - (f) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (g) - (j))
in accordance with 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 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 (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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the
agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file
a civil action, 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
February 2, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 For ease of reference, the Commission has re-lettered complainant's
claims as claims (a) - (j).
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2
0120063663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120055720