Joan M. Chambers, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01990041 (E.E.O.C. Oct. 28, 1999)

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