01A01138_r
06-11-2001
Sharon A. Wheeler, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Sharon A. Wheeler v. Department of the Army
01A01138
June 11, 2001
.
Sharon A. Wheeler,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A01138
Agency No. AGXAFO9910J0480
DECISION
The instant matter is an appeal from an agency decision concerning two
different complaints consolidated by the agency pursuant to 29 C.F.R. �
1614.606. In her complaints dated May 26, 1999 and August 22, 1999,
complainant claims that she was discriminated against on the basis of
disability and was retaliated against for filing a union grievance.
In her complaint dated May 26, 1999, complainant made the following
claims:
A management official delayed completing her performance appraisal;<1>
Complainant was never informed that overtime was available and overtime
was made available to a part-time secretary;
Complainant was never offered training in ACAMS and such training was
made available to a part-time secretary;
The wording and tone of the performance appraisals given to complainant
differed from those given to her co-workers;
During the 1995 appraisal period, everyone in the Analytical Branch
received an award except complainant;
In 1995 complainant was denied a disabled parking space by a management
official and was told by the official that if she �pushed for it� she
would be removed from her position.
In her complaint dated August 22, 1999, complainant made the following
claims:
Complainant was accused of not showing proper respect to a management
official;
Complainant was accused of filing a grievance with the union and was told
that if she had a problem, to see the Acting Branch Chief, not the union;
Complainant was denied reimbursement for her college tuition; and
Complainant did not receive a Step Increase award for an exceptional
appraisal when everyone else got an award.
The agency failed to consider all of complainant's claims, mentioning
only claims 5 and 10 (awards), claim 6 (parking space), claim 7 (respect
for management officials), and claim 9 (college tuition) in its decision.
The agency dismissed claim 6 as moot and the remainder of the complaint
for failing to state a claim. The Commission finds that claims 1,
7 and 8 were properly dismissed for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). Complainant has failed to identify how
these incidents adversely affected a term, condition, or privilege of
her employment.
The remainder of complainant's claims, however, claims 2, 3, 4, 5, 6,
9, and 10, do state a claim.
In its final decision, the agency determined that complainant was not
aggrieved, and therefore, could not state a claim. The Commission finds
that complainant was aggrieved by the incidents described in claims 2,
3, 4, 5, 6, 9, and 10.
The agency dismissed claim 6 on the ground of mootness. 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 claimed violation will
recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the claimed 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.
The Commission finds that claim 6 is not moot. In the instant case,
complainant claimed that she suffered stress because of the actions at
issue, and she has requested the maximum remedy that the law permits.
An agency must address the issue of compensatory damages before it may
dismiss a complaint for mootness. See Rouston v. Nat'l Aeronautics
and Space Admin., EEOC Request No. 05970388 (March 18, 1999). When the
complainant requests compensatory damages, the agency should request that
the complainant provide some objective proof of the claimed damages,
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). The agency did not address the
issue of compensatory damages in its decision; therefore, the agency's
dismissal of claim 6 as moot was improper.
The agency's decision dismissing claims 1, 7, and 8 is AFFIRMED.
The agency's decision dismissing claims 2, 3, 4, 5, 6, 9, and 10
is REVERSED, and, we REMAND claims 2, 3, 4, 5, 6, 9, and 10 to the
agency for further processing in accordance with this decision and the
applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 11, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1This claim was asserted by complainant in both complaints.