0120131026
06-20-2013
Graciela M. Contreras, Complainant, v. John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency.
Graciela M. Contreras,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120131026
Agency No. T-2012-021-CA-A-H0
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 16, 2013, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technician with the California National Guard in Sacramento, California. We note that Complainant worked as an EEO Specialist with the Agency.
On August 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, the Agency failed to timely process Complainant's reasonable accommodation request submitted on 6 January 2012. Complainant also asserted that she was harassed when she was asked to provide medical documentation in support of her request.
The Agency dismissed the complaint pursuant 29 C.F.R. � 1614.107(a)(5) finding that the matter is moot for the Agency has provided Complainant with a reasonable accommodation. Further, the Agency noted that it is its policy that any technician discrimination complaint that is determined to be military in nature will be transferred to the state National Guard of origin for processing as a military complaint of discrimination IAW NGR 600-22, National Guard Military Discrimination Complaint System, as appropriate. As such, the Agency dismissed all the claims.
ANALYSIS AND FINDINGS
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).
Furthermore, we find that the Agency's dismissal on the basis of mootness was inappropriate because the Agency, in determining that the matter was moot, has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. We find that the Agency's articulated reason for the action in dispute, i.e., that Complainant was provided with a reasonable accommodation, goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under the Rehabilitation Act. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). As such, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(5) was not appropriate.
The Agency also dismissed the matter finding that any complaint raised by a technician like Complainant constitutes a military complaint of discrimination. Therefore, in essence, the Agency dismissed the complaint for failure to state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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, .106(a).
EEOC Regulations provide that while 29 C.F.R. � 1614 applies to civilian employees in military departments; it does not apply to uniformed members of military departments. See 29 C.F.R. �� 1614.103(b)(1), (d)(1); 42 U.S.C. � 2000e-16(a). The National Guards Technicians Act of 1968 coffered upon National Guard technicians a unique "dual-status" in that they are both members of the National Guard as well as civilian federal employees of the Army or Air Force. 32 U.S.C. � 709.
The Commission has recognized the unique "dual-status" of technicians in the National Guard, noting that those individuals are considered both uniformed military personnel as well as federal civilian employees. In Dickens v. New Jersey National Guard, Charge No. 031792306 (May 16, 1984), we first addressed whether the Commission has jurisdiction over claims raised by dual-status technicians. We agreed with the general rule that uniformed military personnel, of any branch of the armed forces, are not covered under Section 717 of Title VII. However, we noted that a dual-status technician is considered both a uniformed military member as well as a civilian employee. As a result, we found that dual-status technicians are covered by Section 717 of Title VII when the alleged discriminatory action arises from the individual's capacity as a federal civilian employee. We found that it was necessary for us to review the facts in each case to determine whether the alleged discrimination took place in the context of the individual's capacity as a federal civilian employee or in the capacity of a uniformed member of the military.
Since the Dickens decision, we have analyzed each National Guard dual-status technician complaint on a case-by-case basis to determine whether we have jurisdiction. For example, in Coombs v. U.S. Air Force, EEOC Request No. 05860067 (June 8, 1987), the Commission found that the dual-status technician's allegation of a discriminatory non-selection occurred within his civilian capacity, and the Commission affirmed its previous position that while we may not have jurisdiction over a claim if the challenged personnel action arose in the dual-status technician's capacity as a uniformed military personnel, we do have jurisdiction under Section 717 of Title VII when the alleged discriminatory action arises from the dual-status technician's capacity as a federal civilian employee. See also Brazill v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1989) (The Commission determined that the allegations that Complainant was not commissioned into the Colorado Army National Guard were strictly military in nature, and therefore were not within the purview of the Commission's regulations); Snyder v. Dep't of Air Force, EEOC Appeal No. 01A23584 (March 26, 2003) (The Commission found that the alleged retaliation affected the dual-status technician in his capacity as a civilian employee because he was denied civilian promotions and assignments and was subjected to harassing remarks and physical threats, and therefore was within the scope of Title VII. We ordered the Agency to process the complaint under � 1614); and Brown v. Dep't of Air Force, EEOC Petition No. 0420050011 (May 16, 2007) (The Commission found that a dual-status technician may utilize the EEO process because the record indicated that the challenged action arose from the technician's capacity as a civilian employee when he was reassigned/demoted from one civilian position to another).
In the case at hand, Complainant, an EEO Specialist, with the Agency sought a reasonable accommodation in her civilian position. We find that such a claim arose from the technician's capacity as a civilian employee. Therefore, we find that the Agency's dismissal of the complaint for lack of EEO jurisdiction was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 20, 2013
__________________
Date
2
0120131026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131026