01992915
02-06-2001
Jerome R. Gray, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Jerome R. Gray v. Department of the Navy
01992915
February 6, 2001
.
Jerome R. Gray,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01992915
Agency No. 98-00174-011
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated January 27, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African American), color (none identified), sex
(male), and in reprisal for prior EEO activity when:
On June 26, 1998, complainant was placed on a performance improvement
plan although he was still expected to conduct work at the lead operator
level;
On June 21, 1998, complainant's within grade increase was denied although
his level of performance increased;
In March 1998, complainant was directed to work as if he were fully
ready and able, although complainant was in a light duty status;
Complainant's first-level supervisor uses control devices to show
deficiencies in complainant's job performance, but not with similarly
situated White employees;
Management shows complainant no appreciation (awards) for extra effort,
unlike the White employees;
Complainant was severely penalized (adverse actions and lower performance
rating) for frivolous mistakes which are correctable, or held accountable
for mistakes which are not his fault, but White employees are not treated
this way;
Complainant's second-level supervisor treats him like �a servile ex-con
just released from prison� by the manner in which she speaks to him when
they have a disagreement about work related issues;
Complainant was not given opportunities to cross-train, unlike White
employees;
Complainant was not given opportunities to read and review film, unlike
White employees;
Complainant was not able to work in an office-setting nor able to work
different hours as a White female employee was allowed;
Complainant is no longer allowed to bring beverages or snacks into the
control room within the operating areas.<1>
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(5), on the grounds that it was moot.
The agency noted that subsequent to filing a formal EEO complaint,
complainant entered into an Arbitration Settlement Agreement which
resulted in his reinstatement to the agency and transfer to another
department. The agency stated that as a result of the settlement
agreement and complainant's transfer to a new department, complainant
would no longer interact nor be supervised by anyone in his previous chain
of command. Thus, the agency claimed that interim events eradicated the
effects of the alleged discrimination and argued there is no reasonable
expectation that such violations will recur.
On appeal, complainant argued that his complaint is not moot since he
is entitled to further relief through the EEO process. Specifically,
complainant stated that he requested compensatory damages as relief in
his formal complaint, and therefore argued that his complaint cannot be
dismissed as moot.
In response to complainant's appeal, the agency argues that due to
complainant's reassignment, there is no likelihood that the alleged
violation will recur. In addition, the agency claims that complainant
has been made whole by the reassignment and back pay obtained through
the pre-arbitration settlement agreement. Finally, the agency notes
complainant's failure to respond to
a request for objective evidence of compensatory damages in the Notice
of Partial Acceptance/Dismissal and argues that his non-response should
preclude his entitlement to compensatory damages.
The record shows that on September 21, 1998, complainant was removed
from his position as a GS-9 Engineering Technician with the agency's
Test and Evaluation Department, Code 30. Thereafter complainant filed
a grievance which resulted in a December 8, 1998 settlement agreement.
According to the terms of the settlement agreement, complainant was to be
reinstated and then transferred from the Test and Evaluation Department,
Code 30, to the agency's Ordinance Department, Code 20. The agreement
also provided that complainant would receive back pay following a 90-day
period free of �for cause� discipline.
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. Department 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.
Upon review of the record we find that the agency improperly dismissed
complainant's complaint on the grounds that it was moot. We note
that although some of the effects of the alleged discrimination were
removed as a result of the arbitration settlement agreement, further
relief remains available to complainant through the EEO process.
For example, if complainant prevails on his claim that he received a low
performance appraisal, possible relief would include a revised appraisal.
In addition, in response to his claim that he was unjustly denied a within
grade increase on June 21, 1998, complaint could receive a retroactive
within grade increase. Furthermore, should complainant prevail on
his claim that he was denied appreciation awards, complainant could
receive those awards. Finally, we note that on his formal complaint,
complainant stated that he used sick and annual leave as a result of
the alleged discrimination; thus, another form of relief could include
restoration of that leave.
In addition, we note that in the Notice of Partial Acceptance/Dismissal
dated October 28, 1998, the agency informed complainant that he would
need to provide objective evidence of compensatory damages claimed and
the causal relationship between the alleged acts of discrimination and
the damages claimed. However, the agency did not inform complainant
that supporting evidence of compensatory damages was necessary to
determine whether complainant's complaint could be accepted. Also,
the request did not provide a time limit by which complainant had to
respond. Furthermore, we find that the agency's request for objective
evidence in support of his claim for compensatory damages failed
to provide complainant with sufficient information as to the type
of evidence necessary to prove damages and entitlement. Because of
the deficiencies in the agency's request for evidence of compensatory
damages, we find that complainant's failure to respond to the request
does not preclude him from obtaining compensatory damages. Therefore,
in light of complainant's claim for compensatory damages, the effects
of the alleged violations may not have been completely eradicated.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is REVERSED and the complaint is REMANDED for further
processing in accordance with the Order below.
ORDER (E0900)
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 (K0900)
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 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)(Supp. V 1993). 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 (M0900)
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), 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 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 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
(R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 6, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant's complaint originally identified seventeen issues.
On October 28, 1998, the agency issued a Notice of Partial
Acceptance/Dismissal accepting the eleven issues listed above.
Complainant did not appeal the dismissed portion of the complaint.