Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.Download PDFEqual Employment Opportunity CommissionMay 7, 20140120120119 (E.E.O.C. May. 7, 2014) Copy Citation 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. 0120120119 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 3 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 Copy with citationCopy as parenthetical citation