Lester Lonergan, Appellant,v.Janet Reno, Attorney General, U.S. Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01971610 (E.E.O.C. Sep. 9, 1999)

01971610

09-09-1999

Lester Lonergan, Appellant, v. Janet Reno, Attorney General, U.S. Department of Justice (Federal Bureau of Prisons), Agency.


Lester Lonergan, )

Appellant, )

) Appeal No. 01971610

v. ) Agency No. P-94-8547

) Hearing No. 360-95-8327X

Janet Reno, )

Attorney General, )

U.S. Department of Justice )

(Federal Bureau of Prisons), )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of religion (Catholic), in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant

alleges he was discriminated against when: (1) he was reassigned to

an office at the camp adjacent to the main institution; (2) he was not

designated as Acting Department Head; (3) his annual leave requests were

not honored; (4) he was not assigned an adequate amount of time for the

performance of his duties. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision is

VACATED AND REMANDED.

ISSUE PRESENTED

Whether appellant has been denied his right to an administrative hearing

on his complaint.

CONTENTIONS ON APPEAL

Appellant contends on appeal that the EEOC Administrative Judge (AJ)

assigned to conduct a hearing on his complaint erroneously issued an

Order of Dismissal, finding appellant's complaint to be moot, based upon

his voluntary retirement from federal service. On appeal, appellant

also argues the merits of his complaint. The agency has not filed any

contentions in response to appellant's appeal.

BACKGROUND

In a formal complaint dated September 16, 1994, appellant alleged he

was discriminated against as referenced above. The agency accepted

and investigated appellant's complaint. At the conclusion of the

investigation, the agency transmitted appellant's investigative

report and notice of hearing rights to appellant in accordance with 29

C.F.R. �1614.108. On August 29, 1995, the agency requested that the

EEOC appoint an AJ in order to conduct a hearing on appellant's complaint.

On May 17, 1996, the AJ issued an Order of Dismissal of appellant's

complaint. Specifically, the AJ found that on June 18, 1995,

appellant applied, and was granted voluntary retirement from the agency.

The AJ noted that appellant had argued that he had been constructively

discharged, and as such, the available remedy would be reinstatement.

However, the AJ found that there was no record of a timely filed second

EEO complaint regarding appellant's allegations of a constructive

discharge. Therefore, finding that appellant's complaint raised matters

for which relief could not be granted, the AJ found that appellant's

complaint should be dismissed as moot.

On October 1, 1996, in response to the AJ's Order of Dismissal, appellant

sent a letter to the agency referencing his dissatisfaction with the

AJ's decision. In that letter, appellant stated the following:

I resigned when I did and how I did in order to safeguard my physical

and mental health from continual hostile work environment. All of us

have a breaking point.

On November 12, 1996, the agency issued a final decision rejecting

the AJ's finding that appellant's complaint had been rendered moot.

Specifically, the agency found that appellant's statement in his October

1, 1996 letter could be reasonably interpreted as an indication that

appellant had suffered physical and mental damages over the issues in

his complaint. As such, the agency determined that this constituted

a request for compensatory damages, and thus, as an unresolved claim,

there could be no finding of mootness.

Notwithstanding this determination, the agency proceeded to analyze

appellant's complaint on the merits, finding no discrimination. It is

from this decision that appellant now appeals.

ANALYSIS AND FINDINGS

We initially note our agreement with the agency's finding that appellant's

complaint was not moot. In County of Los Angeles v. Davis, 440 U.S. 625

(1979), the Supreme Court held that where the only matter to be resolved

is the underlying issue of discrimination, a case can be closed if: (1)

it can be said with assurance that there is no reasonable expectation

that the violation will recur; and (2) interim relief or events have

completely eradicated the effects of the alleged violation.

However, because appellant in this case appears to make a claim for

compensatory damages related to the alleged discriminatory conduct of

the agency, the agency should have requested that appellant provide some

objective proof of the alleged damages incurred, as well as objective

evidence linking those damages to the adverse actions at issue. See Benton

v. Department of Defense, EEOC Appeal No. 01932422 (December 10, 1993).

In light of appellant's claim for compensatory damages, the effects

of the alleged violations may not have been completely eradicated.

See Estafania v. Small Business Administration, EEOC Appeal No. 01940838

(April 18, 1994).

More importantly, however, we find that the agency erred when it proceeded

to decide the merits of appellant's complaint, rather than remanding it

back to an AJ once it determined the complaint was not moot. As there

is no indication in the record that appellant withdrew his request for

a hearing, the agency had a duty to comply with appellant's request for

a full administrative hearing pursuant to 29 C.F.R. �1614.109.

CONCLUSION

Based on the foregoing, we VACATE the agency's final decision and REMAND

appellant's complaint to the agency with directions to immediately

forward appellant's complaint to the Commission for the assignment of

an AJ to resume processing in accordance with 29 C.F.R. �1614.109 of the

Commission's regulations. We note that this decision does not constitute

a decision on the merits of appellant's complaint.

ORDER

The agency is ORDERED, within ten (10) calendar days of the date this

decision becomes final, to forward appellant's complaint for assignment to

an EEOC administrative judge for continued processing in accordance with

29 C.F.R. �1614.109 et seq. A copy of the agency's letter forwarding

appellant's complaint for a hearing 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 the

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 the

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:

September 9, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations