0120112573
12-12-2012
Marvin LaGarde, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Marvin LaGarde,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112573
Agency No. ARRIA09SEP04003
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated February 23, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant filed a formal complaint dated October 13, 2009, alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (brown), and in reprisal for prior protected EEO activity when: the Deputy Commander (1/402nd Army Field Support Brigade Support Battalion in Balad, Iraq) rescinded a job offer previously made to Complainant to work in a Quality Assurance position in Iraq. According to the record, Complainant alleged that the Agency's ARDEC Quality Engineering and Systems Assurance interfered with such a selection alleging that he was a substandard employee thereby causing the Deputy Commander to rescind the job offer.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds the complaint was moot. The Agency stated its determination was made on the fact that Complainant accepted an offer to deploy to the 401st Army Field Support Brigade and is currently assigned to the 401st Army Field Support Brigade in Afghanistan. The Agency notes that while Complainant was denied deployment in August 2009, his current deployment eradicates the effects of the discrimination he alleged occurred when the previous offer he received to deploy was rescinded. Additionally, the Agency noted that the management official who rescinded the offer of deployment to Complainant is not in Complainant's chain of command; nor is he in a position to take or influence any action against Complainant. The Agency also noted that the organization that rescinded the offer to deploy to Complainant is not the same organization to which Complainant is currently deployed. The Agency argued that given these circumstances, it is reasonable to expect that the alleged violation will not recur, thereby supporting the determination that it is moot.
On appeal, Complainant argues the fact that the Agency subsequently allowed him to deploy does not excuse the fact that the Agency initially discriminated against him. Complainant argues that ARDEC discriminated with intent and is guilty of disparate treatment and retaliation, and cannot distance itself from its actions simply because another Agency facility has come unknowingly to the rescue and allowed him to be deployed.
In response to Complainant's appeal, the Agency reiterates its position that Complainant's complaint was moot. The Agency notes that Complainant was subsequently deployed to Afghanistan and was placed outside of the supervision of the alleged discriminating official in the present case. The Agency states Complainant lost no pay or benefits by being placed in the Afghanistan deployment as opposed to the rescinded Iraq deployment. The Agency argues that by deploying Complainant to Afghanistan, the effects of the alleged discrimination have been completely and irrevocably eradicated.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. 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 irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for determination of the rights of the parties is presented.
In the present case, we find the Agency properly dismissed Complainant's complaint as moot. We find that Complainant has failed to establish that the deployment to Afghanistan did not completely irrevocably eradicate the effects of the alleged violation. We note Complainant acknowledges that the deployment to Afghanistan was to a similar position and does not dispute the Agency's contention that he did not lose any pay or benefits as a result of the Afghanistan deployment as opposed to having received the rescinded Iraq deployment. Additionally, the record does not reflect that Complainant requested compensatory damages. Moreover, we note on appeal, Complainant does not contend that he requested compensatory damages. Furthermore, we find that there is no reasonable expectation that the alleged violation will recur.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 12, 2012
__________________
Date
2
01-2011-2573
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112573