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.