0120091509
07-23-2009
Karl Gibson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Karl Gibson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091509
Agency No. ARFTLEAV08AUG03316
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 13, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. In his complaint, complainant,
an Industrial Hygienist, GS-11, alleged that he was subjected to
discrimination on the bases of race (white), sex (male), and age (45)
when timecards for the pay periods between April 22, 2008 and July 28,
2008, contained multiple errors. He indicated a personnel officer,
who was involved in payroll, was responsible for the discrimination.
The FAD dismissed the complaint for being moot. 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.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), request for reconsideration
denied, EEOC Request No. 05930306 (February 1, 1993).
In finding the complaint moot, the FAD reasoned that the timecards and
leave accounts had been corrected, and it could be said with assurance
that there was no reasonable expectation that the alleged violation
would recur. Prior to issuing the FAD, the agency asked complainant to
provide evidence on his claimed compensatory damages claim, including
linking them to the timecard errors. The FAD found that while complainant
responded with a discussion of compensatory damages, he linked them to
other incidents, not the timecards.
In his complaint, complainant alleged that the timecard errors included
eight hours of leave without pay (LWOP) around June 2008, and seven hours
of LWOP around July 2008. In his response about compensatory damages,
complainant for the most part described pain and suffering resulting from
alleged harassing incidents other than the timecards. However, he did
state that a loss of wages made it difficult to pay his child support.
On appeal, complainant does not contest that the above timecard issues
were corrected. Rather, he contends that the agency is engaging in
similar behavior in that he has not been reimbursed for travel vouchers
for work performed on August 5, 2008, October 2, 2008, October 20, 2008,
and November 5, 6 & 7, 2008. In opposition to the appeal, the agency
submits an affidavit by a budget analyst explaining that all the travel
vouchers were reviewed and approved for payment for the amounts submitted.
The budget analyst affirms that when the Defense Finance Accounting
Service, the agency which makes payment attempted to make payment, each
one was returned as a result of complainant changing bank accounts but
failing to update his bank information in the Defense Travel System.
Complainant does not contest this. The agency also argues that the FAD
should be affirmed.
We find that the agency properly dismissed the complaint for being moot.
Sometime after the timecard errors, the payroll problems were rectified.
There is no reasonable expectation that this alleged violation will recur.
While complainant generally stated the loss of wages, a possible reference
to the delay in payment caused by charge of eight hours of LWOP in June
2008 and seven hours of LWOP in July 2008 made it difficult to pay
his child support, complainant in no way quantifies the difficulty,
even after the FAD found no objective proof of compensatory damages.
We agree with the FAD's assessment.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 23, 2009
__________________
Date
2
0120091509
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091509