James T. Volz, Appellant,v.Janet Reno, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01985231 (E.E.O.C. Sep. 9, 1999)

01985231

09-09-1999

James T. Volz, Appellant, v. Janet Reno, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.


James T. Volz v. Department of Justice

01985231

September 9, 1999

James T. Volz, )

Appellant, )

) Appeal No. 01985231

v. ) Agency No. F964806

) F964808

Janet Reno, ) F964857

Attorney General, )

Department of Justice )

(Federal Bureau of )

Investigation), )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning his complaints 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. The FAD was dated July 23, 1998.

The appeal was postmarked on June 12, 1998. Accordingly, the timely<1>

appeal is accepted in accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaints as moot.

BACKGROUND

Appellant filed a formal complaint, agency no. F964806, on April 1, 1996

alleging discrimination on the basis of retaliation (prior EEO activity)

when, on September 18, 1995, he was advised by his supervisor that

his night differential pay previously posted in the time and attendance

database was being rescinded. As relief, complainant requested monetary

reimbursement, compensatory damages, attorney's fees and also requested

that disciplinary action be taken against the responsible management

officials.

On January 17, 1997, the agency dismissed appellant's complaint, agency

no. F964806, for failure to state a claim for which relief could be

granted because appellant was paid for the hours of night differential

pay that he was told were being rescinded. The appellant appealed the

decision to the Commission. The Commission then issued a decision, Volz

v. Department of Justice, EEOC Request No. 01972800 (December 10, 1997),

in which it reversed the agency's FAD and remanded appellant's complaint,

agency no. F964806, to the agency for further processing. We reversed

the agency's decision because we found that appellant's complaint did,

in fact, state a claim. In February 1998, appellant moved to consolidate

complaint no. F-96-4806 with two other complaints of his, which were

already pending before an Administrative Judge. These other complaints

were agency nos. F-96-4808 and F-96-4857. In an Order dated March 11,

1998, the AJ ordered consolidation of appellant's three complaints.

On May 5, 1998, a second AJ notified the parties that appellant's three

complaints had been reassigned to her. In her May 5, 1998, Notice and

Order, the second AJ told both parties that she was going to advise

the parties on full relief under the Commission's decision in Poirrier

v. Department of Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994).

She asked both parties to submit proposals for what would constitute

full relief. Both parties responded. The agency stated that since

it was not disputed that appellant eventually received $6.32 in night

differential pay two weeks after he believed he should have been paid,

the amount at issue concerned two weeks of interest on that money, or

just over two cents. The agency offered the following as full relief: 1)

$.02 in lost earnings; and 2) $.06 in compensatory damages. The agency

also offered to reimburse complainant for reasonable and proportionate

attorney's fees, not to exceed one hour, after complainant proffered the

proper documentation. Appellant did not provide the AJ with a proposal

of what he viewed as full relief, nor any explanation of why he should

be awarded compensatory damages. She, then, remanded the case, on May

29, 1998, to the Complaint Adjudication Office for dismissal as moot

because the agency made a unilateral, unconditional Poirrier offer of

full relief to the appellant.

Appellant then appealed the AJ's recommended decision to the Commission

on June 12, 1998. Appellant objected to the AJ's decision, asserting

that the AJ's decision that the case was moot meant that he was not able

to present evidence of retaliatory actions by the agency which occurred

after the AJ made her decision.

The agency's FAD, dated July 23, 1998, affirmed the AJ's decision

regarding: 1) payment of two cents interest to appellant; 2) promise by

the agency that it would not retaliate against appellant in the future;

and 3) denial of any additional compensatory damages. The FAD modified

the AJ's decision with respect to attorney's fees, awarding complainant

reasonable attorney's fees and costs for one hour. With that, the FAD

decided that the totality of the record supported the AJ's request to

dismiss the case as moot because the agency had made a Poirrier offer

of full relief. The FAD directed the agency to advise the Department

of Justice, Complaint Adjudication Office, within 90 days, of the steps

taken to implement full relief.

ANALYSIS AND FINDINGS

An EEOC AJ, prior to the hearing, may advise the parties as to the full

and complete remedy to which a complainant would be entitled should there

be a finding of discrimination. See 29 C.F.R. �1614.501. At that point,

the agency may agree to give complainant the full and complete remedy

defined by the AJ without further processing of the case. To do so,

the agency unilaterally and unconditionally must promise, in writing,

to provide the complainant with the full and complete remedy defined

by the AJ. If the agency does so, the AJ may then remand the case to

the agency to dismiss as moot. If the agency later fails to provide

the complainant with the full and complete remedy as promised, the

complainant may file an appeal with the Office of Federal Operations.

Poirrier v. Department of Veterans Affairs, EEOC Request No. 01933308

(May 5, 1994).

We agree with the agency that appellant's case is moot. Under Poirrier,

the agency unilaterally and unconditionally promised, in writing,

to provide the complainant with full and complete relief as defined by

the AJ. The AJ then correctly remanded the case to the agency to dismiss

as moot, which it did. The AJ was following Commission precedent by

employing this procedure. Appellant's appeal is apparently based on

the fact that he disagrees with the AJ. We find, however, that the

AJ's decision was correct. With regard to the incidents of retaliation

that appellant alleges occurred while his case was in front of the AJ,

we advise him to seek EEO Counseling.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

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 (S0993)

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. 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 (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:

September 9, 1999

______________ __________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 We note that appellant filed his appeal prematurely. Since the agency

has issued a FAD, however, we will accept appellant's appeal as timely

filed.