01982462
10-06-1998
Acie McGhee, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Acie McGhee v. Department of the Navy
01982462
October 6, 1998
Acie McGhee, )
Appellant, )
)
v. ) Appeal No. 01982462
) Agency No. 97-00069-001
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On February 10, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated January 9, 1998, 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.<1> In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (Black) and sex (male) when, without
notice, he was removed from the Director of Budget and Execution position
("Director position") to a non-supervisory position because of alleged
non-performance.
The record indicates that at some point during the counseling of the
instant complaint, appellant accepted early retirement. Subsequent to
appellant's retirement, on January 9, 1998, the agency issued a final
decision dismissing his complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(e), finding that appellant's retirement rendered his
complaint moot.
On appeal, appellant contends that he was forced to retire as a result of
the improper treatment he received directly after his removal as Director,
and the resulting stress imposed on him.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
In the instant complaint, the Commission finds that appellant's retirement
did not completely and irrevocably eradicate the effects of the alleged
discrimination. If appellant were to prevail on his complaint, he would
be entitled, inter alia, to have all records changed to reflect that
he was never removed from his supervisory position. The record does
not indicate that appellant was placed back into the Director position
prior to his retirement or that the removal was appropriately expunged
from his records. Appellant's removal from a supervisory position to
a non-supervisory position could have a derogatory effect on future
employment opportunities. Consequently, we find that the effects of the
alleged discriminatory action have not been eradicated by appellant's
retirement.
Furthermore, on appeal, appellant asserts that he was constructively
discharged from his employment following his removal from the
Director position. Since appellant has clearly raised an allegation
of constructive discharge, we find that the instant complaint has not
necessarily been rendered moot by his retirement, i.e., should appellant
prevail on his allegation of constructive discharge, he would be entitled
to reinstatement, and workplace remedial relief would then be available
for him. Consequently, we find that the issue of constructive discharge
must be remanded for appellant to be given the opportunity to seek EEO
counseling thereon. Therefore, the agency is ordered, as stated below,
to take further actions on the matter.
Finally, on appeal, appellant contends that the factors which led to
his removal from the Director position and subsequent constructive
discharge caused him stress. It appears that appellant has raised the
issue of compensatory damages. The Commission has held that a claim
for compensatory damages can be raised at any time in the administrative
process up to and including the appeal stage. Banks v. Department of the
Interior, EEOC Request No. 05920680 (March 4, 1994). The Commission
has held that an agency must address the issue of compensatory
damages when the complainant presented objective evidence that she
incurred compensatory damages and that the damages were related to the
alleged discrimination. See Jackson v. USPS, EEOC Appeal No. 01923399
(November 12, 1992); request to reopen denied, EEOC Request No. 05930386
(February 11, 1993). Consequently, where, as here, a complainant
requests compensatory damages during the administrative processing of
his complaint, the agency is obliged to request from the complainant
objective evidence of such damages. Should appellant prevail in his
complaint, the possibility of an award of compensatory damages exists,
and his complaint is not therefore moot. See Glover v. USPS, EEOC Appeal
No. 01930696 (December 9, 1993).
Based on the foregoing, we find that the agency improperly dismissed
appellant's complaint as moot. Accordingly, the agency's decision to
dismiss appellant's complaint is hereby REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall provide appellant notice of his right to receive
counseling concerning his allegation of constructive discharge;
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall agency shall acknowledge to the appellant that it has
received the remanded allegation regarding his removal from a supervisory
position and that processing is being resumed.
A copy of the agency's letter of acknowledgment to appellant and a
copy of the notice of appellant's right to pursue counseling of his
constructive discharge claim 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. �1614.10.
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. 6, 1998
____________________________
DATE Ronnie Blumenthal, Director
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within thirty (30) days of receipt of the agency's final
decision. See, 29 C.F.R. �1614.402.