01986414
01-27-2000
Matt W. Jones, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Matt W. Jones v. Department of the Army
01986414
January 27, 2000
Matt W. Jones, )
Complainant, )
)
v. ) Appeal No. 01986414
) Agency No. ACBWFO9806I0140
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.<1> The final agency decision was issued on July
15, 1998. The appeal was postmarked August 21, 1998. Accordingly, the
appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter cited as 29 C.F.R. � 1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<2>
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed the
complaint on the grounds of failure to state a claim, mootness, and that
it claims that a proposal to take a personnel action is discriminatory.
BACKGROUND
Complainant initiated contact with an EEO Counselor on April 24, 1998.
On May 29, 1998, complainant filed a formal EEO complaint wherein he
claimed that he was subjected to discrimination in reprisal for his
previous EEO activity when on March 2, 1998, his position was included
in a list of positions to be abolished under the Fiscal Year 1999 budget.
As relief in part, complainant requested that he be awarded compensatory
damages.
The Director of complainant's Directorate explained that complainant's
position was targeted for abolishment because it was a choice of where the
least impact would come in terms of loss of people within the Directorate.
According to complainant's second-level supervisor, approximately 1-3
months elapsed from the time complainant's position was identified for
abolishment, until his position was reinstated due to other employees
volunteering for the early retirement program.
In its final decision, the agency dismissed the complaint on the
grounds that it failed to state a claim. The agency also dismissed the
complaint on the grounds of mootness and that the complaint involved a
proposed action.
On appeal, complainant argues that his previous EEO activities
significantly contributed to his position being targeted for abolishment.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.103); � 1614.106(a).
The Commission's federal sector case precedent has long defined an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 22, 1994).
In the present case, complainant claims that he was subjected to
discrimination when his position was identified for abolishment.
This claim clearly involves harm to a term, condition, or privilege of
complainant's employment. Accordingly, the agency's decision to dismiss
the complaint on the grounds of failure to state a claim was improper
and is REVERSED.
Volume 64 Fed. Regulation. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(5)) provides, in part, that
the agency shall dismiss a complaint or a portion of a complaint that
alleges that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory.
The record reveals that the alleged discrimination was neither a proposal
to take a personnel action nor another form of preliminary step to
taking a personnel action. Complainant's position was identified for
abolishment. Accordingly, the agency's dismissal of the complaint on
this grounds was improper and is REVERSED.
EEOC Regulation 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
We find that although complainant's position was removed from the list
of positions to be abolished, the complaint is not moot as complainant
requested compensatory damages for the alleged discrimination. 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), req. for recons. den., EEOC Request
No. 05930306 (February 1, 1993). Should complainant prevail on this
complaint, the possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 9, 1993). Because complainant requested compensatory damages,
the agency should have requested that complainant provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse actions at issue. See Allen
v. United States Postal Service, EEOC Request No. 05970672 (June 12,
1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December
3, 1993). Accordingly, the agency's decision to dismiss the complaint
on the grounds of mootness was improper and is REVERSED. This complaint
is hereby REMANDED for further processing pursuant to the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
January 27, 2000
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 Assistant
1On 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.
2The record does not establish when complainant received the final
agency decision. Absent evidence to the contrary, we find that the
instant appeal was timely filed.