01996384
04-04-2000
Robert A. Nance, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Robert A. Nance, )
Complainant, )
)
v. ) Appeal No. 01996384
Rodney E. Slater, ) Agency No. 5-93-5164R
Secretary, ) Hearing No. 310-99-5298X
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On August 14, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated September 30, 1999, pertaining
to 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., the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. , and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> Because the agency
failed to submit a copy of the certified receipt, or any evidence,
indicating the date complainant received the final agency decision, the
Commission will exercise its discretion and accept complainant's appeal
as timely. See 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified as
29 C.F.R. � 1614.402(a)). In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (White), sex (male),
age (DOB 7/24/44), and physical disability (occupational diseases) when:
On May 27, 1992, complainant received an �unacceptable� rating on his
performance evaluation.
The agency dismissed complainant's complaint as moot, based on the fact
that complainant failed to accept the agency's certified offer of full
relief.
On 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. Under these revisions, the Commission deleted the dismissal
basis of failure to accept a certified offer of full relief from the
regulations. See 64 Fed. Reg. 37,644, 37, 645 (1999). In other words,
agencies may no longer dismiss administrative EEO complaints due to
a complainant's failure to accept a certified offer of full relief.
Any dismissal on the grounds of failure to accept a certified offer of
full relief is now improper under the revised regulations.
In the present case, however, the complaint was dismissed pursuant to
Poirrier v. Department of Veterans Affairs, EEOC Appeal No. 01933308
(May 5, 1994). In Poirrier, we held that where an Administrative
Judge (AJ), prior to a hearing, advises the parties as to the full and
complete remedy to which a complainant would be entitled upon a finding
of discrimination, the agency may elect to provide complainant the full
and complete remedy as defined by the AJ, without further processing of
the merits of the case. Poirrier, requires that the agency must promise,
unilaterally and unconditionally, in writing to provide complainant with
the full and complete remedy defined by the Administrative Judge. If the
agency does so, the AJ may remand the case to the agency to dismiss the
complaint as moot. If the agency later fails to provide complainant
with the full and complete remedy as promised, the complainant would
be permitted to file an appeal with the Commission. Therefore, the
agency dismissed the present complaint as moot when it made complainant
a certified offer of full and complete relief, as defined by the AJ's
April 1, 1999 letter identifying the full and complete relief for this
case, and complainant rejected that offer.
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.
In the present case, the agency purportedly made an unconditional offer
of full relief to complainant, however, the record contains no evidence
that the action described in the offer was taken. Therefore, since there
is no evidence to indicate that the effects of the alleged discrimination
have been eradicated, we cannot determine whether complainant's complaint
has been rendered moot. Accordingly, the agency's decision to dismiss
complainant's complaint is VACATED and the complaint is REMANDED for
further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Supplement the record with evidence that it took the action as set forth
in its June 28, 1999 offer. If the agency has such evidence, it shall
issue a new final agency decision and submit a copy of this decision to
the Commission.
If the agency cannot provide evidence that it took the action described
in its offer, the agency shall reinstate complainant's complaint for
further processing and request assignment of an Administrative Judge
(AJ) to conduct a hearing.
A copy of the new final agency decision or notice of further processing
and request for assignment of an AJ 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
(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:
April 4, 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 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.