01986788
12-07-1999
Larry L. Larson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Larry L. Larson, )
Complainant, )
)
v. ) Appeal No. 01986788
) Agency No. 96-00251-074
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
_______________________________ )
DECISION
Complainant filed the instant appeal with this Commission from an agency
decision dated August 6, 1998 dismissing his complaint on the grounds
that the complaint was moot.<1>
The instant complaint was the subject of a prior Commission decision
in Larson v. Department of the Navy, EEOC Appeal No. 01966677
(Apr. 20, 1998). In EEOC Appeal No. 01966677, the Commission found
that complainant had claimed that he was discriminated against on the
bases of disability, sex, and retaliation, when on June 18, 1996, he
was notified that the position of Welder, offered due to a reduction
in force, had been withdrawn. Larson, EEOC Appeal No. 01966677.
The agency found in a decision dated August 23, 1996 that the complaint
was moot because on July 30, 1996 complainant was notified that the offer
due to the reduction in force remained the same as that of the May 1,
1996 offer. Id. Complainant admitted that "the agency has restored my
previous offer . . ." Id.
The Commission previously found:
To determine whether the issues raised in [complainant'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 violation. 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. [The regulation set forth at 64
Fed. Reg 37,644, 37,656 (1999) (to be codified as and hereinafter cited
as 29 C.F.R. �1614.107(a)(5))] requires an agency to dismiss a complaint
that is moot.
In his complaint and on appeal [complainant] requests compensatory
damages. The agency has not addressed this request. The Commission
has held that compensatory damages are available to federal sector
complainants under the Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071. Jackson v. United States Postal Serv., EEOC Appeal
No. 01923399 (Nov. 12, 1992), aff'd, Jackson v. United States Postal
Serv., EEOC Request No. 05930306 (Feb. 1, 1993). Should [complainant]
prevail on this complaint, the possibility of an award of compensatory
damages exists. See Glover v. United States Postal Serv., EEOC Appeal
No. 01930696 (Dec. 9, 1993). Therefore, we find that the complaint is
not moot because [complainant] requested compensatory damages and the
agency has not addressed that request.
Larson, EEOC Appeal No. 01966677.
Subsequent to our prior decision in EEOC Appeal No. 01966677, the agency
requested that complainant provide objective evidence of compensatory
damages. The agency found that the evidence submitted by complainant was
insufficient to show that complainant would be entitled to compensatory
damages. The agency found that complainant's examination on July 17,
1996, by his personal physician referred to that examination as a
"follow-up" yet complainant did not provide any documentation of prior
or subsequent examinations. The agency found that "[t]he connection
between any stress from [complainant's] job, the alleged discrimination,
and any pre-existing medical conditions is unclear." The agency further
found that "the connection between [complainant's] medication and the
alleged discrimination is not established." The agency stated that
it had provided complainant with an opportunity to clarify "these
contradictions," but complainant provided no further documentation.
By memorandum dated July 26, 1996 complainant asserted that he "suffered
weeks of unnecessary stress that resulted from management's careless
handling of my situation." By a note dated June 11, 1998 complainant
stated:
I am requesting compensatory damages in the amount of $150,000 for
stress placed on me . . . When I experienced the physical symptoms my
Dr. sent me to a cardiologist for testing as stated in enclosed notes
the job stress was blamed for my symptoms.
In notes from Medical Doctor A dated July 17, 1996 regarding complainant,
Medical Doctor A stated:
[Complainant] [h]as been tired, but attributes much of this to increasing
uncertainties at work and some question about whether he will continue
to be employed after September . . . He is having nausea, especially
in the early mornings and stomach upset reminiscent of previous gastritis.
. . . .
[H]e seems to be under a fair amount of stress and anxiety and may
actually have some early symptoms of situational depression related to
the uncertainty about his work.
By letter dated June 9, 1998 complainant's representative stated:
Additionally, I was also a close confidant and friend of [complainant]
throughout this time period. We worked together . . . I have first
hand knowledge of his situation.
. . . .
[Complainant] was not eating, sleeping, or functioning in a healthful
manner. The anxiety and fear had impacted his major life functions to
the point of his near physical exhaustion. His relationship with his
spouse and family had suffered greatly. I recall on numerous occasions
he confided to me that it was extremely difficult for him to continue
coming to work.
The Commission has previously addressed what types of evidence
constitutes objective evidence showing that an complainant suffered
compensatory damages. LaRochelle v. Department of the Navy, EEOC Appeal
No. 01942119 (Apr. 13, 1995); Taylor v. Department of the Navy, EEOC
Appeal No. 01940376 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993). In Carle the Commission stated:
Other evidence [of compensatory damages] could have taken the form of
a statement by complainant describing her emotional distress . . .
To properly explain the emotional distress, such statements should
include detailed information on physical or behavioral manifestations of
the distress, if any, and any other information on the intensity of the
distress, information on the duration of the distress, and examples of
how the distress affected complainant day to day, both on and off the job.
Carle, EEOC Appeal No. 01922369.
The Commission finds that the statements provided by complainant, the
June 9, 1998 statement from complainant's representative regarding his
personal observations of complainant, and the observations of Medical
Doctor A, are sufficient to constitute the objective evidence necessary
to show that complainant may be entitled to compensatory damages were
he to prevail on his complaint. Therefore, we can not find that the
effects of the alleged discrimination have been completely eradicated.
The complaint is not moot. The Commission makes no determination in
this decision as to whether complainant would actually be entitled to
compensatory damages were he to prevail on the merits of his complaint.
The agency's decision dismissing the complaint is REVERSED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded claims in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded claims 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.
A copy of the agency's letter of acknowledgement to appellant 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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:
Dec. 7, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.