William L. Strong, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 12, 2002
01A04901_r (E.E.O.C. Apr. 12, 2002)

01A04901_r

04-12-2002

William L. Strong, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


William L. Strong v. Department of the Army

01A04901

April 12, 2002

.

William L. Strong,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A04901

Agency No. FO0005A0310

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact.

Complainant initiated EEO Counselor contact on February 4, 2000.

Informal efforts to resolve his concerns were unsuccessful.

In a formal complaint dated May 4, 2000, complainant alleged unlawful

discrimination in violation of Title VII of the Civil Rights Act

of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the

basis of race when he was denied reclassification from the Electrical

Engineering Technician, series 0802, to Electrical Engineer, series 0850.

Specifically, complainant alleged that in December 1998, his supervisor

initiated the process necessary for reclassification. Complainant stated

that while the paperwork was submitted to the Director of Engineering,

it received no further action, and that complainant never received an

adequate explanation why the process had not continued, though he made

another inquiry in January 1999. In his complaint, complainant also

states that he had �continued discussions� with an agency official in

January 2000, but has �not received a response� from agency officials.

The record reflects that following complainant's initial EEO Counselor

contact on February 4, 2000, complainant alleged that a supervisor

failed to submit the necessary certification letter to reclassify him

to an Electrical Engineer position, on February 28, 2000.

In its final agency decision (FAD) dated June 1, 2000, the agency

dismissed the complaint on the grounds of untimely EEO Counselor

contact. The agency determined that complainant should have suspected

discrimination in December 1998, when he was aware his supervisor had

initiated the reclassification process. The agency found that complainant

produced no proof that he had requested any further action beyond his

December 1998 request; that complainant had not requested the Director

of Engineering to take action on complainant's behalf and therefore,

complainant should reasonably have suspected discrimination in December

1998, and sought EEO counseling accordingly.

Complainant has alleged that agency officials have failed to act on his

request for reclassification since at least January 1999, through February

2000. Because the record reflects that complainant's unsuccessful efforts

to seek agency action on his reclassification requests continued through

complainant's initial EEO Counselor contact, we find that the complainant

has timely contacted an EEO Counselor regarding this claim.

On appeal, the agency states that the complainant's complaint should

be dismissed on the grounds of mootness because since the filing of his

complaint, complainant's position has been reclassified to Electrical

Engineer, 0850 series as a GS-13, step 6. On appeal, complainant argues

that the complaint has not been rendered moot because �compensatory

damages have not been considered.�

The Commission has clearly held that a complainant may raise a claim for

compensatory damages at any time in the administrative process up to,

and including, the appeal stage, but not thereafter. Simpkins v. United

States Postal Service, EEOC Request No. 05940887 (September 29, 1995).

The instant complaint is not moot because, at a minimum, if complainant

were to prevail in this matter, he might be entitled to compensatory

relief. The Commission has long held that the potential for such damages

means that a claim cannot be dismissed as being moot. The 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. See Jackson

v. United States Postal Service, EEOC Appeal No. 01923399 (November

12, 1992), request to reconsider denied, EEOC Request No. 05930306

(February 1, 1993). Because complainant requested compensatory damages,

the agency should have requested that complainant 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).

Based on the foregoing, we find that dismissal of the complaint on the

alternate grounds offered by the agency on appeal would be improper.

Accordingly, the final agency decision dismissing the instant complaint

for untimely EEO Counselor contact is REVERSED. The complaint is REMANDED

to the agency for further processing in accordance with this decision

and the Order below.

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 (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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 12, 2002

__________________

Date