Randy M. Diener, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01a00091 (E.E.O.C. Jan. 19, 2000)

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).