Owen D. Goggles, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01980773 (E.E.O.C. Mar. 17, 2000)

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.