Peggy A. Ranivand, Complainant,v.Madeline K. Albright, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a02017 (E.E.O.C. Jul. 6, 2000)

01a02017

07-06-2000

Peggy A. Ranivand, Complainant, v. Madeline K. Albright, Secretary, Department of State, Agency.


Peggy A. Ranivand v. Department of State

01A02017

July 6, 2000

Peggy A. Ranivand, )

Complainant, )

)

v. ) Appeal No. 01A02017

) Agency No. 9960

Madeline K. Albright, )

Secretary, )

Department of State, )

Agency. )

____________________________________)

DECISION

On January 13, 2000, complainant filed a timely appeal with this

Commission from an agency decision pertaining to her 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> In her complaint,

complainant alleged that she was subjected to discrimination on the

basis of sex (female) and forced to work in hostile work environment

because management failed to take appropriate action to stop her from

being sexually harassed. Complainant specifically alleged that she was

sexually harassed in that:

On April 26, 1999 a co-worker blocked her path and trapped her in a

narrow printer area while he starred at her and stalked her with his

eyes; and

On April 27, 1999, the same co-worker leered at her with trance-like

stares each time she passed while he used the copier near her office.

Pursuant to EEOC Regulations the agency dismissed complainant's complaint

because it was moot. Specifically, the agency determined that because

management took immediate action to investigate and correct the alleged

behavior, including the temporary reassignment of the alleged harasser

to two separate details of 120 days, there was no longer any basis for

complainant's hostile work environment claim.

On appeal, complainant asserts that the alleged harasser has not

permanently been removed from her work environment, and notes that

his temporary detail was again extended but was due to expire in April

2000. Complainant also asserts on appeal that she �may be entitled to

compensatory damages.�

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.

Upon review of the record, we find that the agency improperly

dismissed complainant's complaint. The record shows that on May 5,

1999, complainant's alleged harasser was temporarily detailed away from

complainant's work environment, a detail that was extended at least twice

and was due to expire in April 2000, subject to further extensions.

Nevertheless, such a temporary assignment, however extended, does not

provide a reasonable expectation that the alleged harassment will not

recur. Therefore, as long as complainant's alleged harrasser is on a

temporary detail and he will return to her workplace at the end of that

detail, complainant's claims cannot be considered moot.

Additionally, on appeal complainant also raises the issue of potential

compensatory damages. Should complainant prevail on this complaint,

the possibility of an award of compensatory damages exists, and the

Commission has long held that the potential for such damages means that

a claim cannot be dismissed as moot. See Glover v. United States Postal

Service, EEOC Appeal No. 01930696 (December 9, 1993). An agency must

address the issue of compensatory damages when a complainant shows

objective evidence that she 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). Consequently, because complainant has here raised the issue

of compensatory damages, as part of its investigation the agency should

request 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 final decision dismissing complainant's

complaint is REVERSED. The complaint is REMANDED to the agency for

further processing in accordance with this decision and the Order below.

ORDER (E0400)

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 a

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

July 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.