01974037
02-24-1999
Gary J. Fitz, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Gary J. Fitz v. Department of Transportation
01974037
February 24, 1999
Gary J. Fitz, )
Appellant, )
)
v. ) Appeal No. 01974037
) Agency No. 1-97-1043
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �501 et seq. The final agency decision was
issued on March 21, 1997. The appeal was postmarked April 18, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that the allegation raised involved a proposal
or preliminary step to take a personnel action.
BACKGROUND
Appellant initiated contact with an EEO Counselor on November 23, 1996.
On January 20, 1997, appellant filed a formal EEO complaint wherein he
alleged that he was discriminated against on the bases of his physical
disability (insulin-dependent diabetes), mental disability (bi-polar
disorder), and in reprisal for his previous EEO activity when he was
not selected for the position of Railroad Safety Specialist (Hazardous
Materials), GS-2121-13, advertised under Vacancy Announcement FRA 96-61M.
The record reveals that appellant was the only applicant for the position
of Railroad Safety Specialist (Hazardous Materials), GS-2121-13,
advertised under Vacancy Announcement FRA 96-61M. This vacancy
announcement was subsequently canceled in September 1996. The agency
readvertised the position under Vacancy Announcement FRA 96-93M.
In its final decision, the agency dismissed appellant's complaint on
the grounds that the allegation raised involved a preliminary step or
proposal to take an action. Specifically, the agency found that since the
position had not yet been filled, appellant had not yet suffered a harm.
On appeal, appellant argues that he has suffered harm in the form
of a salary loss since he is still employed at the GS-12 grade level
rather than the GS-13 grade level. Appellant claims that he is also
being harmed because he is not accumulating tenure at the GS-13 grade.
Appellant also appears to be requesting compensatory damages as he states
that the discrimination has created distress for himself and his family.
Appellant notes that the Railroad Safety Specialist position has not
been filled even though the second vacancy announcement closed in
November 1996. According to appellant, the position has not been filled
because the agency can not find a candidate more qualified than he.
Appellant maintains that he should have been selected pursuant to the
first vacancy announcement since he was the only qualified applicant.
Appellant contends that it is clear he is not the agency's choice for
the position in light of the readvertised vacancy announcement and the
amount of time that has passed since the vacancy announcements closed.
In response, the agency asserts that appellant's complaint has been
rendered moot because appellant was selected for the position at issue
on May 30, 1997. The agency notes that appellant accepted the position
on June 2, 1997, and is scheduled to report to his new position on July
21, 1997. The agency maintains that any initial harm has been eradicated
by appellant's selection. The agency further claims that appellant's
nonselection pursuant to the first vacancy announcement did not cause him
harm because no applicant was selected under that vacancy announcement.
As for its cancellation of the vacancy announcement and subsequent
readvertisement, the agency asserts that appellant has made no showing
that the agency's motivations were for any other reason other than to
obtain a larger pool of candidates. With regard to appellant's request
for compensatory damages, the agency argues that such request is negated
because the complaint failed to state an actionable claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory.
Upon review, we find that the agency mischaracterized appellant's
allegation. The agency framed appellant's as solely involving his
nonselection for the subject position. Appellant alleged that he was
subjected to discrimination when the agency canceled Vacancy Announcement
FRA 96-61M and, therefore, avoided selecting him for the Railroad Safety
Specialist position. Appellant maintains that the agency canceled
this vacancy announcement and reissued a new announcement so that it
would not have to select him for the position. The cancellation of the
vacancy announcement was not a proposed act, but rather was implemented.
Based on the foregoing, we find that the agency's dismissal of appellant's
complaint on the grounds that it involved a proposed act was improper.
EEOC Regulation 29 C.F.R. �1614.107(e) further states that the agency
shall dismiss a complaint that is moot. In County of Los Angeles
v. Davis, 440 U.S. 625 (1979), the Supreme Court held that where the
only matter to be resolved is the underlying issue of discrimination,
a case can be closed if:
(1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and
(2) interim relief or events have completely eradicated the
effects of the alleged violation.
Upon review, we find that appellant's complaint is not moot. Although
the record indicates that after the instant appeal was filed, appellant
was selected for the position at issue, this does not completely and
irrevocably eradicate the effects of the alleged violation. It is likely
that appellant would have been working in the relevant position at an
earlier date had he been selected under the first vacancy announcement.
Therefore, appellant has lost some amount of salary and tenure in the
relevant position as a result of the alleged discrimination. Further,
appellant states in his appeal that the discrimination has created
distress for him and his family. It is reasonable to conclude that
appellant is seeking compensatory damages. 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. USPS, EEOC Appeal No. 01923399 (November 12, 1992), request
to reopen denied, EEOC Request No. 05930306 (February 1, 1993). Because
appellant in this case appears to make a claim for compensatory damages
related to the alleged discriminatory conduct of the agency, the agency
should request that appellant provide some objective proof of the alleged
damages incurred, as well as objective evidence linking those damages
to the adverse actions at issue. See Benton v. Department of Defense,
EEOC Appeal No. 01932422 (December 10, 1993). In light of appellant's
claim for compensatory damages, the effects of the alleged violations may
not have been completely eradicated. See Estafania v. Small Business
Administration, EEOC Appeal No. 01940838 (April 18, 1994). Therefore,
the instant complaint is hereby REMANDED for further processing in
accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations