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