01A04404
11-09-1999
Jerry E. Johnson, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Jerry E. Johnson v. Department of Defense, Defense Commissary Agency
01A04404
January 17, 2001
.
Jerry E. Johnson,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A04404
Agency No. 00DCW16FO31
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).<1>
In a complaint dated April 24, 2000, complainant alleged that he
was discriminated against on the basis of sex when he was sexually
harassed by a female manager on December 21, 1999. He alleged that the
female manager showed him a sexually oriented device and then asked him
�how do you measure up?� in the presence of co-workers, who laughed at
complainant when the question was raised. The record reflects that as
a remedy, complainant requested compensatory damages.
The agency dismissed the complaint as moot stating that there is no
reasonable expectation that the alleged violation will recur, and interim
relief or events have completely and irrevocably eradicated the effects
of the alleged violation. Specifically, the agency determined that it
took immediate disciplinary action against the manager, as well as other
employees, who were involved in the incident. Noting that complainant
requested compensatory damages, the agency determined that complainant's
claim �does not support a monetary award� because �there was no documented
harm to you and the inappropriate behavior was promptly corrected.�
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that the agency shall
dismiss a complaint that is moot. To determine whether the issues raised
in appellant's complaint remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if the interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
We find, however, that this allegation was not rendered moot, at a
minimum, because complainant requested compensatory damages. We have held
that an agency must address the issue of compensatory damages when the
complainant presented objective evidence that he incurred compensatory
damages and that the damages were related to the alleged discrimination.
See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992);
request to reopen denied, EEOC Request No. 05930386 (February 11, 1993).
Consequently, where, as here, a complainant requests compensatory damages
during the processing of his complaint, the agency is obliged to request
from the complainant objective evidence of such damages. In this case,
the agency did not request objective evidence of compensatory damages
from complainant, but merely determined absent such a request that the
matter raised by complainant was insufficient to support a compensatory
damages claim. However, should complainant prevail in his claim, the
possibility of an award of compensatory damages exists, and complainant's
claim is not moot. See Glover v. USPS , EEOC Appeal No. 01930696 (December
9, 1993). Accordingly, the agency's decision to dismiss the complaint
on the grounds of mootness was improper.
On appeal, the agency argues for the first time that the matter raised
in complainant's complaint fails to state a claim. However, given the
circumstances surrounding the matter raised by complainant, the Commission
determines that the claim alleges a loss or harm relating to a term,
condition or privilege of employment that has rendered him aggrieved.
Accordingly, the agency's decision to dismiss the complaint is REVERSED.
The complaint is REMANDED to the agency 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
__________________
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
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.