[Redacted], Charles E., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2020001679 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles E.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020001679 Hearing No. 480-2016-00826X Agency No. FS-2016-00033 DISMISSAL OF APPEAL Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated November 21, 2019, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Law Enforcement Officer, GS-1801-09, at the Agency’s Descanso Ranger District in the Cleveland National Forest in Alpine, California. On January 4, 2016, Complainant filed a formal complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the bases of national origin (Filipino) and disability (Post-Traumatic Stress Disorder) as evidenced by multiple incidents that occurred between October 2013 and May 2015. Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On November 6, 2019, the AJ dismissed Complainant’s hearing request as a sanction for failure to comply with her orders regarding his responses to the Agency’s discovery requests. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020001679 2 On November 18, 2019, the Agency issued a final order in which it fully implemented the AJ’s decision to dismiss the hearing request. In so doing, the Agency failed to follow the AJ’s order to issue a final decision on the merits of the complaint. Complainant pointed out the Agency’s error on appeal. The Agency agreed, and on January 17, 2019, issued its final decision (FAD) in which it found that since October 23, 2015, it had failed to provide Complainant with a reasonable accommodation. As relief, the order directed the Agency to conduct a supplemental investigation into Complainant’s entitlement to compensatory damages; pay appropriate attorney’s fees; award back pay; consider disciplinary action against the responsible management officials; conduct training for those officials; and to post a notice. On February 20, 2020, the Agency filed a motion to dismiss the appeal which stated, in pertinent part: On January 23, 2020, [Complainant’s] Counsel received the FAD and contacted the Agency legal representative. Counsel conferred again regarding the procedural status of the matter and the parties intentions, and counsel agreed that insofar as the basis for the appeal was the mistaken issuance of a final order instead of a [final agency decision], and because the Agency subsequently issued a FAD on the merits and thereby cured any error, and further given [Complainant’s] stated intention to pursue his remedies under the Agency’s FAD instead of the original appeal, the instant appeal became moot. The issues raised in a matter are moot, i.e., no longer in dispute (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Sallie M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020001493 (July 12, 2021) citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). The Agency clearly corrected its error in issuing a final decision after the AJ dismissed Complainant’s hearing request. Moreover, there actually was a finding of discrimination and entitlement to relief. There are no indications that Complainant ever filed an appeal contesting the FAD issued on January 17, 2019. The only post-FAD submissions from Complainant are two status requests, dated September 1 and October 6, 2020, in which Complainant’s Counsel noted that the Agency had advised him that they cannot discuss damages while the appeal is pending. In neither status request does Complainant’s counsel indicate that he is challenging the January 17, 2019 FAD on its merits. We therefore agree with the Agency that both criteria for mootness have been satisfied. Accordingly, the appeal is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2020001679 3 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 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. 2020001679 4 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 12, 2021 Date