Janet M. Clark, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 19, 1999
01974024 (E.E.O.C. Nov. 19, 1999)

01974024

11-19-1999

Janet M. Clark, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.


Janet M. Clark v. Department of the Army

01974024

November 19, 1999

Janet M. Clark, )

Complainant, )

) Appeal No. 01974024

) Agency No. 09612G0520

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

INTRODUCTION

On April 16, 1997, Janet M. Clark (complainant) timely filed an appeal

with the Equal Employment Opportunity Commission (the Commission) from

a final agency decision (FAD) dated March 13, 1997, concerning her

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.<1>

The Commission hereby accepts the appeal in accordance with EEOC Order

No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against

her based on reprisal when she was not referred by the personnel office

as a repromotion eligible candidate for a GS-6 position.

BACKGROUND

Complainant was employed by the agency as a Supply Clerk, GS-5, at the

Savanna Army Depot Activity, in Savanna, Illinois at the time of the

alleged discrimination. On August 2, 1990, complainant had been placed

into a GS-8 position as a Data Management Assistant as part of a June

15, 1989, settlement agreement she entered into with the agency which

settled discrimination claims she had pending in U.S. District Court.

Complainant's previous position had been that of a Computer Assistant,

GS-8. On August 6, 1990, the agency issued a Reduction in Force (RIF)

Notice to complainant, effective October 13, 1990, which offered her

the Supply Clerk, GS-5, position; complainant accepted the position.

Under the agency's regulations, complainant was to still receive her

GS-8 position pay while in the GS-5 position for two years after the

RIF or until she had been repromoted back to her previous pay grade.

Also under the agency's regulations, employees downgraded by the RIF

were to be placed on a repromotion register which entitled them to be

noncompetitively referred for open positions. Complainant was placed

on such a register.

On November 1, 1990, the Operations and System Integrations Division

requested permission to create and fill two Computer Operator positions.

The position classification specialist initially decided that both

positions would be at the GS-7 level. The personnel specialist in charge

of the repromotion register rated complainant as "best qualified" and

forwarded her name noncompetitively to the Selecting Official (SO) on a

list of one for his consideration. The SO interviewed complainant for

the position and subsequently on December 7, 1990, rejected her for the

position saying that she "does not at this time meet the requirements of

the position." After complainant's nonselection for the GS-7 position,

the agency did not then advertise and competitively fill the two

GS-7 positions. It instead advertised the jobs at a GS-6 level with

promotion potential to the GS-7 level. Complainant did not receive a

noncompetitive referral for the GS-6 positions and instead her name was

competitively forwarded along with three other candidates to the SO.

She was not chosen for either of the positions.

Complainant initiated EEO Counseling on January 2, 1991. She filed

a formal complaint on January 30, 1991, alleging discrimination on

the basis of reprisal when on December 18, 1990, she was not referred

by the personnel office as a repromotion eligible candidate for the

position of Computer Operator, GS-6, "in accordance with the applicable

regulations."<2> The agency accepted the complaint for investigation and

processing. At the conclusion of the investigation, the agency issued,

on June 10, 1991, a copy of its investigative report to complainant,

and on June 27, 1991, it notified complainant of her right to request

an administrative hearing. Complainant requested a hearing before a

Commission Administrative Judge (AJ) on July 11, 1991, which the agency

forwarded to the Commission in March 1992.

In the meantime, on July 30, 1991, the agency removed complainant

from employment because of insubordination. Complainant appealed this

removal to the Merit Systems Protection Board (MSPB). In April 1992,

the Commission AJ returned the case file to the agency for the case to

be held in abeyance until such time as the complainant had exhausted her

appeal rights with the MSPB. Complainant appealed the MSPB decision

to the United States Court of Appeals for the Federal Circuit, and

petitioned the United States Supreme Court for a Writ of Certiorari,

which was denied on January 24, 1994.

In May 1994, the agency returned the case file to the Commission to

continue the process begun by complainant's hearing request in July 1991.

The Commission, however, once again returned the case file to the agency,

finding that the complaint should be processed as a mixed-case complaint,

appealable to the MSPB. On September 19, 1994, complainant filed an

appeal with the MSPB, which issued a decision dismissing for lack of

jurisdiction on October 18, 1994. Complainant notified the AJ of the

MSPB's decision and requested that the AJ order the agency to recommence

processing of the complaint as a non-mixed complaint. Instead, the

agency issued a FAD on January 6, 1995, finding that complainant had not

been subjected to discrimination. Complainant appealed the January 6,

1995 FAD to the Commission in Janet M. Clark v. Department of the Army,

EEOC Appeal No. 01952564 (December 13, 1995). In that appeal, we found

that the agency had prematurely issued a FAD on complainant's claim,

and we ordered the agency to continue processing her complaint.

The agency, in February 1996, again requested a hearing before a

Commission AJ for the complainant. In a letter dated December 10, 1996,

complainant withdrew her request for an AJ hearing because she disagreed

with the AJ's definition of the issue and the scope of the proposed relief

as set forth by the AJ in the prehearing Order. Complainant asked that

the agency issue its final decision on the record and the agency issued

its FAD on March 13, 1997.

In its FAD, the agency found that the complainant had established a

prima facie case of reprisal discrimination. The agency gave as its

legitimate nondiscriminatory reason for its refusal to refer complainant

in a noncompetitive status to the GS-6 position that she had already been

considered for the position in a noncompetitive status. The personnel

office sought guidance on the issue from higher agency officials and

was informed this was the correct interpretation of the regulations that

were relevant to repromotion consideration procedures. Complainant was

referred competitively for the GS-6 and was not selected because the SO

again found that she did not met the position requirements. The agency

then noted that:

"[w]hatever merit may be found in the argument that [complainant] should

have been referred noncompetitively at the grade 6 level is moot, since

the record is clear that she was not viewed as meeting the requirements

of the position at either grade level and would not have been selected

in any event."

The FAD stated that complainant had failed to establish that the

legitimate, nondiscriminatory reason articulated by the agency for its

decision was a pretext for discrimination.

On appeal, complainant argued that the agency's legitimate,

nondiscriminatory reason was not supported by admissible evidence and

its evidence was not legally sufficient. The complainant "urged"

the Commission to consider the agency's actions regarding both the

GS-7 and the GS-6 positions when analyzing the case because the events

were so "inextricably intertwined" that it only made sense to consider

them together. Complainant also argued that she had shown that the

agency's given reason was pretext for discrimination for several reasons,

including: the agency's past treatment of her; its failure to fill the

GS-7; her "objectively superior qualifications" for the positions as

compared to the selectees; the inherent inconsistency of the agency

finding her "best qualified" and not meeting the requirements of the

positions at the same time; and her subsequent treatment by the agency,

including her removal.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. �1614.107(a)(5)), an agency shall

dismiss a complaint, or portions thereof, when the issues raised are moot.

An allegation is moot only if (1) 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

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)).

We find that complainant's complaint should be dismissed as moot.

Complainant clearly sought counseling only on the issue of whether

the agency discriminated against her by not referring her for the GS-6

position noncompetitively, as she contended they should have under the

applicable agency regulations. This is how the issue is framed in the

counselor's report, and on the formal complaint, and it was the focus

of the agency's investigation into complainant's complaint. At the

investigative hearing held by the agency, it was revealed that complainant

had contested, apparently phrasing the issue differently in each forum,

her non-selection as a GS-6 in three different arenas - the EEO process,

the grievance process and with the Office of Special Counsel (OSC)

(which declined to investigate the claim, a decision complainant appealed

to the MSPB). The file does not contain information pertaining to the

grievance or the OSC/MSPB challenges so that we may know the specific

complaints made, or the outcomes of those complaints. Complainant did not

apparently challenge her non-selection as a GS-7 in any forum. At the

investigative hearing, after these other two challenges were brought to

the attention of the investigator, the complainant specified that "the

only issue I'm addressing in this instant complaint is the fact that I

was not referred as a repromotion eligible" and "all I was asking for

was repromotion consideration in this complaint."

Because complainant is no longer an agency employee, and complainant's

removal from the agency was upheld on appeal by the administrative and

judicial forums in which it was heard, there is no likelihood that the

violation will recur. Complainant's claim is that she was not referred

as a repromotion eligible candidate for the GS-6 position, and the

remedy would be in the nature of ordering priority consideration for

her candidacy for a future open position, a remedy that would have no

practical effect. In her complaint, complainant requested as relief the

"position of computer operator, GS-06, or other position with grade level

of at least GS-07" and "appropriate disciplinary action taken against

offending officials." Complainant would not be entitled to back pay for

the period between the denial of the position and her removal from the

agency because under the RIF she was still receiving her pay at the GS-8

level and therefore suffered no monetary loss when she was not selected.

Additionally, complainant made no claim for compensatory damages; such a

claim would preclude a finding of mootness because there could be some

additional relief to which complainant would be entitled. She would

not be entitled to such damages even had she requested them because her

claim arose before the passage of the Civil Rights Act of 1991. We note

that complainant's complaint was filed in January 1991. Pursuant to the

decision of the U.S. Supreme Court in Landgraf v. USI Film Products, 511

U.S. 244 (1994), the compensatory damages provision of the Civil Rights

Act of 1991 may not be retroactively applied to conduct that occurred

before the November 21, 1991, effective date of the Act. Therefore,

we find that there no longer exists relief to which complainant would

be entitled and her claim is moot.

Accordingly, for the reasons given above, the decision of the agency is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

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:

November 19, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all Federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.

2 According to complainant's appeal brief, on February 25, 1991,

she filed a grievance over her non-selection for the GS-6 position.

The outcome of that grievance, a copy of the grievance itself and the

related paperwork and appeal briefs (which were apparently filed) are

not contained in the record.