01990041
10-28-1999
Joan M. Chambers, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Joan M. Chambers v. Department of the Army
01990041
October 28, 1999
Joan M. Chambers, )
Appellant, )
)
v. ) Appeal No. 01990041
) Agency No. ANEP9808I0210
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 22, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(e). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision defined four allegations raised by the
appellant's complaint. The agency accepted allegations 2a, 2b, and 2c
for investigation. The agency dismissed allegation 4a on the ground
that it was moot because the appellant received a performance rating,
for the period from November 21, 1996 through December 31, 1997, on July
30, 1998.
On appeal, the appellant contends that the allegation should not be
dismissed because it is part of a pattern of harassment. The appellant
also informs the Commission that she has initiated a second complaint
on the invalid appraisal. The appellant represents that she is having
difficulty getting both complaints consolidated and that she has been
unable to obtain counseling regarding a proposal to dismiss her from
the Federal Civil Service.
In response, the agency contends that the corrective action the
appellant sought was the issuance of the performance appraisal which
she has received. The agency also contends that there is no reasonable
expectation that the alleged violation will recur.
EEOC Regulation 29 C.F.R. �1614.107(e) requires the agency to dismiss a
complaint, or portion thereof, which is moot. A complaint is moot and
a person is no longer aggrieved when it can be said with assurance that:
(1) interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation; and (2) there is no reasonable
expectation that the alleged violation will recur. When both conditions
are satisfied, neither party has a legal, cognizable interest in the final
determination of the underlying questions of fact and law. County of
Los Angeles v. Davis, 440 U.S. 625, 631 (1979). When a complainant
seeks compensatory damages, the agency must request objective evidence
of the damages incurred and objective evidence linking the damages to
the alleged discrimination prior to dismissing a complaint on the ground
that it is moot. The agency must also address the sufficiency of any
damages evidence in its decision. Salazar v. Department of Justice,
EEOC Request No. 05930316 (February 9, 1994).
The Commission finds that neither of the mootness criteria have been
satisfied in this case. The Commission cannot conclude that there
is no reasonable expectation that the alleged violation will recur
where the appellant allegedly is continuing to experience harassment,
discrimination and retaliation by the agency. Moreover, according
to the EEO Counselor's Report and the formal complaint, the appellant
sought an exceptional rating on her performance appraisal, a cash award
for her performance, and the deletion of an allegedly false October 9,
1997 midpoint review date. The appraisal issued in July 1998 contained
only a successful rating with an October 9, 1997 midpoint review date.
The record does not contain any evidence that the appellant received
a cash award for her performance. In addition, the appraisal does not
contain any comments and the signature of the person who served as the
appellant's immediate supervisor during the appraisal period. Finally,
there is no indication in the record that the agency requested evidence
from the appellant in support of her compensatory damages claim and
address such evidence in the final decision. For these reasons, the
Commission finds that interim events have not completely and irrevocably
eradicated the effects of the alleged violation.
On remand, the agency should consolidate the appellant's complaints as
requested by the appellant. The agency should also provide counseling on
the appellant's removal claim, including an explanation of the appellant's
mixed case rights, if it has not already done so.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of the appellant's June 22, 1998 complaint and REMANDS the
complaint for processing as ORDERED below.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations and consolidated all pending
complaints filed by the appellant within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
If it has not already done so, the agency shall also provide counseling on
the appellant's removal claim, including an explanation of the appellant's
mixed case rights, within thirty (30) calendar days of the date this
decision becomes final.
A copy of the agency's letter of acknowledgment and consolidation, a copy
of the notice transmitting the investigative file and notice of rights,
and a copy of the Counseling Report on the appellant's removal complaint,
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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. 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 (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:
10/28/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations