01980746
10-16-1998
Stephen J. Schlesinger, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Stephen J. Schlesinger, )
Appellant, )
)
v. ) Appeal No. 01980746
) Agency No. 96-3179
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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 final agency decision was issued on October
3, 1997. The appeal was postmarked October 28, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of mootness.
BACKGROUND
Appellant initiated contact with an EEO Counselor on December 15, 1995.
On May 13, 1996, appellant filed a formal EEO complaint wherein he alleged
that he was discriminated against on the basis of his sex (male) when:
1. In early December 1995, the Supervisory Import Specialist (SIS)
verbally threatened to fire or suspend him.
2. In early December 1995 and January 1996, the SIS called him at home.
3. In October 1995, the SIS encouraged a female employee to file a
complaint against appellant.
4. In mid-January 1996, the SIS initiated a disciplinary action against
him for violation of the agency standard of conduct.
5. The SIS has subjected him to public humiliation since 1993.
6. In February 1996, he was reassigned to another Commodity Team.
7. In January 1996, the SIS verbally warned another agency employee not
to associate with appellant.
8. In late November 1995, the SIS initiated an Internal Affairs
investigation against him.
9. On November 24, 1995, he was temporarily reassigned to the Air Mail
Branch at the JFK Airport for eleven weeks.
10. In November 1995, the SIS shared appellant's personal correspondence
with other coworkers.
In its final decision, the agency dismissed allegations 1-5 on the grounds
of failure to state a claim. The agency also dismissed allegations 3
and 5 on the grounds of failure to contact an EEO Counselor in a timely
manner. The remaining allegations of the complaint were accepted for
investigation. Thereafter, appellant filed an appeal with the Commission.
On appeal, appellant claimed that the SIS harassed, �stalked, threatened
and bullied� him, �trumped up charges,� and disseminated �malicious
disinformation and slander� about him. Appellant argued that he suffered
a loss of reputation and damage to his career, he experienced mental
anguish, and was issued a notice of suspension.
In the previous decision, Stephen J. Schlesinger v. Department of the
Treasury, EEOC Appeal No. 01965630 (August 14, 1997), the Commission
reversed the final agency decision with respect to allegations 1, 2,
4, and 5. These allegations were remanded for further processing.
The Commission found that appellant alleged continuing harassment
by the same individual over a definite period of time and that these
allegations are closely associated with the allegations that were accepted
for investigation.
The agency subsequently issued a final decision wherein it dismissed
appellant's complaint on the grounds of mootness. The agency determined
that appellant was removed from his position of Import Specialist,
effective July 31, 1997. According to the agency, the removal eradicated
the effects of the alleged discrimination and eliminated the possibility
that the alleged discrimination will recur.
On appeal, appellant argues that he has been damaged emotionally and
in his career by the alleged harassment. In support of his position,
appellant submits a statement from his psychiatrist. According to the
psychiatrist, appellant suffers from major depression and his symptoms
were greatly exacerbated by the actions and charges of a supervisor
at his place of employment. The psychiatrist states that appellant's
periodic removal from work, charges and threats of termination, and
the accompanying hopelessness and isolation are clearly contributory to
appellant's condition. Appellant also contends that he is likely to be
reinstated to employment and therefore, the agency's rationale for its
dismissal on the grounds of mootness will no longer be applicable.
In response, the agency asserts that no determination has been made to
date to reinstate appellant. The agency maintains that it carefully
considered the nature and seriousness of the charges against appellant
in the proposed removal before it issued a final decision to remove him
from employment. According to the agency, the harassment that occurred
was not inflicted upon appellant but rather appellant harassed the SIS.
The agency notes that appellant was previously disciplined for his
misconduct. The agency states that in the removal decision, it found
that appellant's discourteous and threatening conduct perpetuated a
hostile and demoralizing work environment. With regard to its finding
of mootness, the agency asserts that any discriminatory treatment cannot
recur given that appellant has been removed and he is not subject to an
alleged hostile work environment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) states that the agency shall
dismiss a complaint that is moot. In County of Los Angeles v. Davis,
440 U.S. 625 (1979), the Supreme Court held that where the only matter
to be resolved is the underlying issue of discrimination, a case can be
closed if:
(1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and
(2) interim relief or events have completely eradicated the
effects of the alleged violation.
Upon review, we find that appellant's complaint is not moot. Although
the record indicates that appellant was removed from employment with the
agency, this does not completely and irrevocably eradicate the effects of
the alleged violations. It is evident from the record that appellant is
claiming that he suffered emotional harm and mental anguish as a result of
the alleged discrimination. It is reasonable to conclude that appellant
is seeking compensatory damages. The Commission has held that an agency
must address the issue of compensatory damages when a complainant shows
objective evidence that he has incurred compensatory damages, and that
the damages are related to the alleged discrimination. Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). Because appellant in this
case appears to make a claim for compensatory damages related to the
alleged discriminatory conduct of the agency, the agency should have
requested that appellant provide some objective proof of the alleged
damages incurred, as well as objective evidence linking those damages
to the adverse actions at issue. See Benton v. Department of Defense,
EEOC Appeal No. 01932422 (December 10, 1993). In light of appellant's
claim for compensatory damages, the effects of the alleged violations may
not have been completely eradicated. See Estafania v. Small Business
Administration, EEOC Appeal No. 01940838 (April 18, 1994). Therefore,
the instant complaint is hereby REMANDED for further processing in
accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations