05960646
10-08-1998
Israel Rodriguez-Soto, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Israel Rodriguez-Soto v. Department of the Army
05960646
October 8, 1998
Israel Rodriguez-Soto, )
Appellant, )
)
v. ) Request No. 05960646
) Appeal No. 01960874
Louis Caldera, ) Agency No. CEFL9506F1320
Secretary, )
Department of the Army, )
Agency. )
_________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
On June 26, 1996, Israel Rodriguez-Soto (appellant) initiated a request
to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Israel Rodriguez-Soto v. Department of the
Army, EEOC Appeal No. 01960874 (June 19, 1996). EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and
the previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). Appellant's request
is granted.
ISSUES PRESENTED
(1) Whether the previous decision, which dismissed appellant's November
9, 1995, appeal on the grounds that it was untimely filed, was correctly
decided.
(2) Whether the agency properly dismissed allegations 1 and 2 of
appellant's complaint on the grounds that the allegations allege that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory; and whether the agency properly
dismissed allegation 3 of appellant's complaint on the grounds that he
allegation is moot.
BACKGROUND
In a formal complaint dated September 25, 1995, appellant alleged that
the agency discriminated against him on the bases of his national origin
and/or reprisal when : (1) it placed him on a Performance Improvement
Period (PIP) from October 17, 1994, to July 5, 1995; (2) it denied him
meaningful assistance to improve during the PIP period; (3) it removed
him from the inspection team and canceled his travel duty (TDY); and
(4) it issued him a notice of proposed removal dated July 5, 1995.
In a final agency decision (FAD) mailed to appellant on October 6, 1995,
the agency dismissed allegations 1, 2 and 4 on the grounds that they
allege that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory, and dismissed
allegation 3 on the grounds that the allegation is moot. The FAD was
received by appellant's attorney's office and signed for on October 10,
1995. The certified mail receipt had two dates in the item designated for
the date of delivery. One date was October 10, 1995, the date on which
the document was actually delivered by the post office to appellant's
attorney. The other date was October 6, 1995, the date the agency mailed
the FAD. Appellant appealed the agency's dismissal of allegations 1,
2 and 3 of his complaint. The Commission's previous decision dismissed
appellant's appeal as untimely because it determined that appellant
received the FAD on October 6, 1995.
In his request for reconsideration, appellant stated that the previous
decision improperly determined that he received the final agency decision
on October 6, 1995.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds, for the
reasons provided below, that appellant's request meets the criterion of
29 C.F.R. �1614.407(2). Therefore, it is the decision of the commission
to grant the request.
A careful review of the certified mail receipt indicates that the agency's
final decision was received and signed for by appellant's attorney on
October 10, 1995. Appellant's appeal to the commission on November 9,
1995, was, therefore, timely. Accordingly, the Commission reverses the
previous decision dismissing appellant's appeal.
The Commission now considers appellant's appeal. EEOC Regulation 29
C.F.R. �1614.107(e) provides that an 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. This provision
requires the dismissal of complaints that allege discrimination "in
any preliminary steps that do not, without further action, affect the
person: for example, progress reviews or improvement periods that are
not a part of any official file on the employee." 57 Fed. Reg. 12643
(April 10, 1992); see McAlhaney v. United States Postal Service, EEOC
Request No. 05940949 (July 7, 1995). Furthermore, the Commission has
stated that a complaint may not be dismissed under this section when the
appellant alleges that the preliminary step was taken for the purpose of
harassing the individual for a prohibited reason because in such a case,
the agency's action has already affected the employee. 57 Fed. Reg. 12643
(April 10, 1992); see Noone v. Central Intelligence Agency, EEOC Request
No. 05940422 (January 23, 1995).
Appellant alleged that the agency placed him on the PIP and denied him
meaningful assistance to improve during the PIP as part of a pattern
of discrimination on the basis of his national origin. Since appellant
has alleged, in essence, that the agency's actions were taken for
purposes of harassment, he has already been affected by the agency's
actions. Moreover, the agency has produced no evidence that it purged all
official files on appellant of the PIP and progress reviews. Accordingly,
the Commission finds that the agency improperly dismissed allegations
1 and 2 of appellant's complaint pursuant to 29 C.F.R. �1614.107(e).
With respect to allegation 3, the Commission has held that a complaint
is moot only if (1) there is no reasonable expectation that the alleged
violation will recur; and (2) the 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
these circumstances exist, there is no relief available and, therefore,
no need to determine the rights of the parties.
The Commission finds that allegation 3 of appellant's complaint is not
moot because appellant timely raised an allegation of discriminatory
removal with an EEO counselor. Thus, should appellant prevail on his
discriminatory removal claim and be reinstated to his position, he would
then be entitled to remedies for allegation 3, if discrimination were
found. See Irvine v. Department of Defense, EEOC Request No. 05930924
(May 5, 1994).
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request for reconsideration meets the criteria of 29 C.F.R. �1614.407(c)
(2), and the request hereby is GRANTED. The Commission's previous decision
dismissing appellant's appeal is REVERSED. There is no further right
of administrative appeal from the Commission's decision in EEOC Appeal
No. 01960874. The agency's final decision dismissing allegations 1, 2
and 3 of appellant's complaint is REVERSED. The allegations are remanded
to the agency for processing in accordance with this decision and the
Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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) Modified
With regard to the portion of this decision pertaining to appellant's
allegation of discrimination, 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:
Oct. 8, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat