01980773
03-17-2000
Owen D. Goggles, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Owen D. Goggles v. Department of Health and Human Services
01980773
March 17, 2000
Owen D. Goggles, )
Complainant, )
)
v. ) Appeal No. 01980773
) Agency No. IHS-520-94
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
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., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. 791 et seq.<1> The final agency decision
was issued on September 29, 1997. The appeal was postmarked November 3,
1997. 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).<2>
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of mootness.
BACKGROUND
Complainant initiated contact with an EEO Counselor on February 8, 1994.
On April 11, 1994, complainant filed a formal EEO complaint wherein he
alleged that he was discriminated against on the bases of his mental
and physical disability (post-traumatic stress disorder) and in reprisal
for his previous EEO activity when:
1. From 1990 to January 1994, he was denied access to an outside EEO
Counselor.
2. On November 19, 1993, he received a memorandum counseling him on
leave usage.
3. On February 9, 1994, he did not receive a performance rating for
the period January 1, 1993, to December 31, 1993.
4. On March 20, 1991, he received a "Fully Successful" performance rating
for the period January 1, 1990 to December 31, 1990, rather than a rating
of "Excellent".
5. On June 8, 1992, he was subjected to harassment when he was forced
to hire an attorney to represent him when he was accused of assaulting
a coworker.
6. On July 29, 1992, he did not receive a rating for the period January
1, 1991 to December 31, 1991, and he should have been rated "Excellent".
7. On January 24, 1993, he received a rating of "Fully Successful"
for the period of January 1, 1992 to December 21, 1992, rather than a
rating of "Excellent".
8. In January 1993, he was subjected to harassment when he was not
given a set of keys for the new lock.
The complaint was accepted and an investigation was conducted.
Subsequent to its investigation, the agency issued a final decision.
In its final decision, the agency dismissed the complaint on the grounds
of mootness. The agency determined that complainant was terminated in
May 1995. The agency stated that the relief sought by complainant cannot
be granted. The agency also noted that complainant did not file an EEO
complaint with regard to his termination. Thereafter, complainant filed
the instant appeal.
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)(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 the agency's dismissal of claims 1 and 8 was proper.
There is no reasonable expectation that a situation will arise again where
complainant will seek to utilize an EEO Counselor from outside the agency
in a complaint against the agency. Further, in light of complainant's
termination, it can be concluded that the situation of complainant
not being provided with a set of keys for the new lock will not recur.
Complainant's termination has also completely and irrevocably eradicated
the effects of the violations raised in claims 1 and 8. Accordingly,
the agency's dismissal of claims 1 and 8 on the grounds of mootness was
proper and is AFFIRMED.
We find that the agency's dismissal of claims 2-7 of the complaint was
improper. The record reveals that complainant is no longer employed by
the agency and consequently, there is a reasonable expectation that the
alleged violations will not recur; however, complainant's termination
has not completely and irrevocably eradicated the effects of the alleged
discrimination with regard to claims 2-7. With regard to claims 4 and
7, there is no evidence in the record to establish that the performance
appraisals have been expunged from complainant's personnel records.
As for claims 3 and 6, there is no evidence to establish that performance
ratings have been inserted in complainant's personnel records. Since the
performance appraisals or lack thereof could have residual effects on
complainant's future employment, complainant's termination cannot be
said to have completely and irrevocably eradicated the effects of the
alleged discrimination.
As for claim 2, we note that there is no evidence of record that the
memorandum on leave usage has been expunged from complainant's records.
With respect to claim 5, complainant claims that he was forced to hire an
attorney to represent him when he was accused of assaulting a coworker.
We are unable to conclude that complainant's termination completely
and irrevocably eradicated the effects of the alleged discrimination
given that complainant may have incurred attorney's fees. Accordingly,
the agency's decision to dismiss claims 2-7 of the complaint on the
grounds of mootness was improper and is REVERSED. These claims are
hereby remanded for further processing pursuant to the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims (2-7) 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 (2-7) 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 (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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:
March 17, 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.