Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

May 7, 2014

0120120119 (E.E.O.C. May. 7, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120120119

Agency No. 10-63-02400D

DECISION
Complainant appealed from the Agency’s final decision dated July 29, 2011, dismissing her
complaint for failure to state a claim and as moot pursuant to 29 C.F.R. §§ 1614.107(a)(1) and
(a)(5) and also dismissed a portion of the complaint for laches. For the following reasons, we
AFFIRM the Agency’s decision dismissing the complaint.

BACKGROUND
The record indicates that the Agency defined Complainant’s complaint as whether she, a
former employee of the Agency, was discriminated against based on sex (female), perceived
sexual orientation,1

disability, and in reprisal (for respecting staff behavior) when she was
subjected to harassment in that:
• Her supervisor periodically told her that there was no work available, criticized
her work, did not give her positive reviews, refused to discuss grievances she
filed with others, observed her working in the field, and invaded her privacy by
meeting with her housing manager.
• The supervisor commented to her that lesbians were “possessive” and “didn't
like to see couples.”
• Coworkers and others (neighbors and office manager from her housing
complex) spread rumors, followed her, or watched her while she worked.

1 In its decision the Agency stated that it was processing the sexual orientation claim pursuant
to DAO 215-11. The Agency did not indicate that it was also processing the claim under the
EEO process.
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2
• She suspected that people were obtaining information about her and using it for
purposes unrelated to her job.
• The Agency failed to fully reimburse her for carfare.

Complainant does not challenge the Agency’s definition of the claims, which allegedly
occurred in May and June 2010. As remedies for the alleged claims, Complainant requested:
a copy of all records, reports, and other information received about her medical,
psychological, and housing history; a copy of any adverse comments from staff, neighbors,
housing management, and maintenance staff, as well as any other comments obtained and
placed in her records; adverse comments from staff and neighbors in her records be expunged;
and, correction of her pay to reflect carfare she spent for interviews and travel to the office as
nontaxed reimbursements.

In its decision, the Agency dismissed Complainant’s claims as moot and/or for failure to state a
claim. Specifically, the Agency stated that the complaint was moot because Complainant was
no longer subjected to the working conditions she alleged since she and the supervisor,
described in her complaint, were no longer employed by the Agency due to the disbanding of
the Census work. The Agency noted that Complainant was terminated from her employment
as an Enumerator at the Agency on July 20, 2010, for lack of work. Complainant does not
allege in her complaint that she was wrongfully discharged. The Agency, on alternative
grounds, dismissed the claims for failure to state a claim after finding that Complainant was
not aggrieved. With regard to the carfare claim, the Agency stated that the doctrine of laches
applied since Complainant did not file her formal complaint until 11 months after her initial
EEO Counselor contact. The Agency also stated that the alleged discrimination in reprisal for
respecting staff behavior was not a protected basis encompassed in EEO statutes since it did
not involve any protected activity and thus Complainant’s claims of reprisal also failed to state
a claim.

Complainant appealed the Agency’s final decision dismissing her complaint. In response to
Complainant’s appeal, the Agency indicates that the doctrine of laches also applies to the work
availability claim.

ANALYSIS AND FINDINGS
Initially, we note that the Agency indicates on appeal that the doctrine of laches applies to the
carfare claim and, in addition to what it found in its decision, the work availability claim. The
Commission has held that all complainants must act with due diligence in the pursuit of their
claims or the doctrine of laches may be applied. The doctrine of laches is an equitable remedy
under which an individual's failure to diligently pursue their actions could bar their claim. See
O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990). In the instant case, the Agency indicated that the doctrine of laches
applied since Complainant did not file her complaint until 11 months after her initial EEO
Counselor contact. The record indicates that Complainant contacted an EEO Counselor on
0120120119

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June 9, 2010,2

regarding her claims which occurred between May and June 2010. On appeal,
Complainant contends that when she did not hear anything from her EEO Counselor since July
17, 2010, she asked the EEO Counselor about the status of her case on July 23, 2010.
Complainant submits a copy of her message, described above, and the EEO Counselor’s
response that she was “waiting to hear back from management.” The Agency clearly
acknowledged that it did not issue Complainant a notice of final interview until one year later
on June 15, 2011, informing her to file her complaint within 15 days of receipt of the notice.
29 C.F.R. §1614.106(b). Complainant timely filed the instant complaint on June 28, 2011.
Based on the foregoing, we find that Complainant acted with due diligence in pursuit of her
claims (the carfare and work assignment claims) and, thus, the doctrine of laches is not
applicable in this case.
After a review of the record, we find that the Agency properly dismissed the complaint as
moot. EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of claims that
are moot. To determine whether the issue raised in the complaint is moot, the fact finder must
ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that
the alleged violation will recur; and (2) the 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 (1970); Kuo v. Dep’t 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 record indicates that Complainant was terminated from her temporary employment at the
Agency on July 20, 2010, for lack of work due to its disbandment of the Census work. We
note that Complainant’s termination is not a live issue in this case. The Agency, undisputed by
Complainant, indicated that Complainant’s supervisor, as well as all the other staff, were no
longer working at the Agency due to the completion of the Census work. Also, the Agency
indicated that Complainant was subsequently properly reimbursed for her carfare she alleged
she was denied in the complaint. On appeal, Complainant does not contest this.3

Furthermore, in her complaint, Complainant did not request any compensatory damages for the
alleged claims. Complainant did not allege that she was terminated for reasons related to the
alleged harassment, nor did she allege that she suffered any loss, injury, or harm as a result of
the actions she alleges were discriminatory. Since Complainant alleged a hostile work
environment and she is no longer subjected to the working conditions she alleged and interim
relief has eradicated the effects of the alleged discrimination, we find that the alleged claims
are moot. Therefore, we find that the Agency properly dismissed the complaint as moot. 29
C.F.R. § 1614.107(a)(5).

2 Although the Agency, in its decision, stated that Complainant’s initial EEO Counselor contact
was on June 15, 2010, the EEO Counselor’s report indicates that it was on June 9, 2010.
3 Although Complainant requested the carfare reimbursement be tax free, we find that issue
beyond the scope of our jurisdiction.
0120120119

4
We note that in her complaint, Complainant claimed that she was subjected to harassment by
her supervisor based in part on his perception of her sexual orientation. The Commission has
found that lesbian, gay, bisexual, and transgender individuals may bring claims of
discrimination under Title VII in certain circumstances, including sex stereotyping. See Macy
v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (citing Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baker v. Social Security Admin., EEOC
Appeal No. 0120110008 (January 11, 2013); Veretto v. U.S. Postal Service

, EEOC Appeal
No. 0120110873 (July 1, 2011)). Complainant’s claims could be interpreted as a claim that
she was the victim of sex stereotyping. Instead of ignoring such a claim, the Agency should
have addressed Complainant’s sex stereotyping claims as she alleged. We, nevertheless, note
that since we are affirming the Agency’s dismissal of the complaint as moot, we find that any
sex stereotyping claim is also moot.

CONCLUSION
Accordingly, the Agency’s decision dismissing Complainant’s complaint is AFFIRMED.4

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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

4 We note that although the Agency dismissed the basis of reprisal (for respecting staff
behavior) for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), we need not
discuss whether such dismissal was proper because dismissal of the complaint is affirmed as
moot pursuant to 29 C.F.R. § 1614.107(a)(5).
(EEO MD-110), at 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 77960, Washington, DC 20013. 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.
0120120119

5

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

(S0610)
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
May 7, 2014