01A14682_r
07-10-2002
Victoria M. Wagner, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Victoria M. Wagner v. Department of Commerce
01A14682
July 10, 2002
.
Victoria M. Wagner,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A14682
Agency No. 98-63-10125
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 30, 2001, dismissing her 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race and disability when:
(1) on or about May 14, 1998, when informing her supervisor, of scheduled
hand surgery three weeks from that date, [Supervisor] stated, �I guess
we will have to put up with this for another month;�
(2) complainant was told that her air conditioning restriction could no
longer be accommodated because there would not be any more work for her
in that area, whereas two other pregnant White women were allowed to work
in the air conditioning without having to provide a doctor's statement;
(3) complainant was told that she would have to take leave or look for
another job that would be able to accommodate her restrictions;
(4) complainant received an unfair evaluation that prevented her from
obtaining other positions;
(5) complainant was forced to have her doctor change her air conditioning
restriction statement to read 85 degrees or less; and
(6) complainant and other black employees do not receive recognition or
promotional opportunities.
In an April 15, 1999 decision, the agency dismissed claim (1) for
untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2);
claims (2), (3) and (5) on the grounds of mootness, pursuant to 29
C.F.R. � 1614.107(a)(5); and claims (4) and (6) on the grounds that
these matters were not raised with an EEO Counselor pursuant to 29
C.F.R. � 1614.107(a)(2). On appeal, the Commission affirmed the agency's
dismissal of claims (1), (4) and (6). However, the Commission reversed
the agency's dismissal of claims (2), (3) and (5), and remanded these
claims for further processing. The Commission noted that complainant
requested damages for stress for the first time on appeal. The Commission
determined that because there was a question of compensatory damages,
the interim relief or events did not necessarily eradicate the effects of
the alleged violation. Wagner v. Department of Commerce, EEOC Appeal
No. 01994938 (May 9, 2001); request to reconsider denied, EEOC Request
No. 05A10736 (January 9, 2002).
The agency issued a new final decision on May 30, 2001, which is the
subject of the present appeal. Therein, the agency dismissed claims
(2), (3) and (5) on the grounds of mootness, pursuant to 29 C.F.R. �
1614.107(a)(5). The agency determined that complainant requested a
medical reassignment to an air conditioned work area to remedy this
complaint, and that the agency granted her request for a reassignment
effective October 18, 1998. Thus, the agency determined that complainant
has been reassigned from the hostile work environment and that claims
(2), (3) and (5) are now moot. With respect to compensatory damages,
the agency stated by certified mail dated July 15, 1999, complainant was
requested to submit objective evidence of compensatory to the agency by
September 15, 1999. The agency further stated that the Domestic Return
Receipt PS Form 3811, shows that complainant received the agency's
request for proof of compensatory damages on July 19, 1999, and that
complainant failed to respond to the agency's request. In the absence
of any objective evidence from complainant, the agency concluded that
claims (2), (3) and (5) have been rendered moot.
On appeal, complainant states that her claims are not moot. In her
statement, complainant wrote �[Supervisor's] harassment contributed to
unnecessary stress on me because she threatened loss of employment due
to these medical conditions. If the stressful environment continued I
would have had even more problems with my hands and pregnancy...�
The regulation set forth at 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.
With regard to claims (2), (3) and (5), the record supports the agency's
determination that complainant was reassigned to another room in October
1998. We find interim relief (complainant's reassignment) eradicated
the effects of the alleged violation. Moreover, there is no evidence
of record to show that there is reasonable expectation that the alleged
violation will recur.
With respect to compensatory damages, we note that the record indicates
that on July 15, 1999, a request for objective evidence was mailed via
certified mail to complainant for completion concerning her request
for compensatory damage with the notice that failure to return it by
September 15, 1999, would result in the dismissal of the complaint.
Complainant received the request on July 19, 1999, and she did not respond
to the agency's request. Furthermore, on appeal, complainant presented
no persuasive arguments or evidence to warrant an extension of the time
limit for responding to the agency's request. We find that the agency's
dismissal of complainant's compensatory damage claim was proper.
Accordingly, the agency's final decision dismissing claims (2), (3) and
(5) on the grounds of mootness is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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.
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
July 10, 2002
__________________
Date