01a00091
01-19-2000
Randy M. Diener, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Randy M. Diener, )
Complainant, )
)
v. ) Appeal No.01A00091
) Agency No.99-1534
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated September 23, 1999, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107.<1> The Commission accepts the
complainant's appeal in accordance with EEOC Order No. 960, as amended.
The agency dismissed the complainant's EEO complaint for failure to state
a claim, finding that the complainant was no longer aggrieved regarding
the denial of prosthodontic assignments.
On appeal, the complainant contends that he is still aggrieved because
he sought compensatory damages.
Where a complaint alleges discriminatory denial of assignments, which is a
term or condition of employment, an agency may not dismiss the complaint
for failure to state a claim under 29 C.F.R. Part 1614. Instead, the
agency may determine whether the complaint has been rendered moot.
64 Fed. Reg. 37,644, 37,656 (1999) (renumbered and hereinafter referred to
as 29 C.F.R. �1614.107(a)(5)) requires the dismissal of a complaint where
the claims raised therein are moot. To determine whether the claim raised
in appellant's complaint is moot, it must be ascertained (1) whether
it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) whether interim relief
or events have completely and irrevocably eradicated the effects of
the alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available, and there
is no need for a determination of the rights of the parties.
The complainant requested compensatory damages when meeting with the
EEO counselor and when filing his formal complaint. However, the
compensatory damages request has not been addressed by the agency. <2>
Therefore, the Commission can not conclude that interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. The record also lacks evidence that the agency has provided
the complainant with the prosthodontic assignments which he sought,
although the agency apparently has promised to provide the complainant
with such assignments. For these reasons, the Commission does not find
that the complaint has been rendered moot.
Because the complainant's claim states a claim and appears to remain
justiciable, the Commission REVERSES the agency's dismissal of the July
20, 1999 complaint and REMANDS the complaint for processing as ORDERED
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 the complainant a copy of the investigative file and also
shall notify the 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 the 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 19, 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 the complainant, the complainant's representative
(if applicable), and the agency on:
DATE Equal Employment Assistant1On 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 Commission has held that an agency must address the issue of
compensatory damages before it can dismiss a complaint for mootness.
Routson, Estate of Robert E. v. National Aeronautics and Space
Administration, EEOC Request No. 05970388 ( March 18, 1999).