0120180751
03-13-2018
Garrett M,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, (Defense Media Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Garrett M,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
(Defense Media Activity),
Agency.
Appeal No. 0120180751
Agency No. 2017-DMA-007
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 29, 2017, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an IT Specialist, GS-2210-13 at the Agency's facility in Fort Meade, Maryland. Complainant began his employment with the Agency on April 4, 2016.
The record indicated that Complainant requested that his supervisor ("Supervisor," unknown religious affiliation) provide him with days off from work that coincided with Jewish holidays. The Supervisor stated that Complainant would routinely use advanced religious compensatory time on holidays observed due to his religious affiliation. Subsequently, the Human Resources Specialist ("Specialist," unknown religious affiliation) denied Complainant's request for religious compensatory time. Because the Agency believed he was erroneously given religious compensatory time, the Agency determined that Complainant was indebted to the Agency for his use of religious compensatory time by 64.75 hours or $ 2,858.71. Instead, Complainant felt that the Agency owed him 227 hours of religious compensatory time.
On August 18, 2017, Complainant contacted the EEO Counselor alleging discrimination. On October 24, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of religion (Jewish) when:
1. On or about April 6, 2016, Complainant's supervisor (Supervisor) commented to Complainant that he was "shocked and amazed" and "the mission precedes religion" when Complainant informed him he could not work Saturdays.
2. In April 2016, the Supervisor stopped his religious compensatory time.
3. In April 2016, the Human Resources Specialist denied Complainant's request to take two days of religious compensatory time.
4. Between August 2, 2016 through January 2017, Complainant was erroneously charged religious compensatory time for every holiday.
5. The Supervisor refused to make the necessary time changes to resolve his debt.
The Agency dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. �1614.107(a)(2) for failure to raise these claims in a timely manner. The Agency noted that these claims occurred in April 2016. However, Complainant contacted the EEO Counselor in August 2017, well beyond the 45-day time limit. Therefore, the Agency dismissed claims (1), (2), and (3).
The Agency then dismissed claims (4) and (5) pursuant to 29 C.F.R. � 1614.107(a)(5) for mootness. The Agency indicated that, with respect to claim (4), the Defense Finance and Accounting Service sent Complainant a letter dated July 22, 2017, stating that Complainant was overpaid $1,669.48. When Complainant tried to resolve the alleged indebtedness, as raised in claim (5), the Supervisor refused to resolve the issue. The Agency stated that after Complainant made contact with the EEO Counselor, it corrected Complainant's leave record and provided 56 Religious Compensatory hours, of the 64.75 hours he was charged. As such, the Agency determined that Complainant still owed the Agency 8.75 advanced religious compensatory time. Further, the Agency noted that Complainant has since left the Agency. Therefore, the Agency found that the alleged discrimination was resolved and the alleged action would not recur. Accordingly, the Agency dismissed claims (4) and (5).
This appeal followed.
ANALYSIS AND FINDINGS
The Agency dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. �1614.107(a)(2). EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review, we find that the Agency properly dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. �1614.107(a)(2) for failure to raise these events in a timely manner. The record indicated that the alleged events occurred in April 2016. Complainant did not contact the EEO Counselor until August 2017, well beyond the 45-day time limit. Complainant has not provided any reason to extend the time limit. Therefore, we affirm the Agency's dismissal of claims (1), (2), and (3).
The Agency dismissed claims (4) and (5) for mootness. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint 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. Dep't 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.
The Commission has held that an agency must address the issue of compensatory damages when a complainant shows objective evidence that she has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for reconsideration denied, EEOC Request No. 05930306 (Feb. 1, 1993). Should complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993). 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. U.S. Postal Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep't of Def., EEOC Appeal No. 01932422 (Dec. 3, 1993). As the Agency failed to address the issue of compensatory damages, we find that dismissal on the grounds that it was rendered moot was improper. See Rouston v. Nat'l Aeronautics and Space Admin., EEOC Request No. 05970388 (Mar. 18, 1999).
Upon review of the record, we find that claims (4) and (5) are part of the same single claim regarding the Agency's decision to seek repayment of advanced religious compensatory time and Complainant's attempt to resolve the matter with the Supervisor. The record indicated that Complainant was asked to repay the Agency for 64.75 hours in July 2017. The Agency indicated that, following Complainant bringing the matter to the attention of the EEO Counselor, it adjusted Complainant's leave record. As a result, the Agency determined that Complainant only owed 8.75 hours. The Agency found that the matter had been resolved and, since Complainant has left the Agency, the issue would not recur.
Based on our review of the record, we find that the Agency has not shown that the matter is moot. First, although the Agency reduced Complainant's indebtedness, Complainant still owes 8.75 hours. As such, the matter has not been resolved as asserted by the Agency and the Agency's action has not eradicated the effects of the alleged discrimination. Therefore, we find that the Agency's dismissal of this matter was not appropriate.
CONCLUSION
Accordingly, we AFFIRM the dismissal of claims (1), (2), and (3). However, we REVERSE the dismissal of claims (4) and (5) and REMAND this matter for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims, namely claims (4) and (5), 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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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