0120082783
08-20-2008
Craig J. Schwartz, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Craig J. Schwartz,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120082783
Agency No. DEA-2008-00150
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 2, 2008, dismissing his 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.
On January 23, 2008, complainant, who is employed as a Criminal
Investigator at the agency's Drug Enforcement Administration (DEA)
Chicago Office filed an EEO complaint alleging that he was discriminated
against based on his religion (Jewish) by his former supervisor, the
Resident Agent-in-Charge (RAC), when he was employed in St. Croix,
Virgin Island. He alleged that the RAC harassed him from February 2005
through October 2007, resulting in a hostile work environment. Complainant
attached a twenty-page statement detailing the work place incidents he
deemed hostile and discriminatory based on his religion.
The agency dismissed the complaint as moot stating that in October
2007, complainant was reassigned from the DEA's Caribbean Division,
St. Croix Resident Office, Christiansted, Virgin Islands to DEA's
Chicago Field Division Office. The agency stated that complainant no
longer works under the RAC who complainant claimed was subjecting him to
hostile work environment. Moreover, the agency claimed that there is no
reasonable expectation that the alleged violation will recur because of
the reassignment, and that complainant's reassignment to a different
geographical location in which he is under a different supervisor
has completely and irrevocably eradicated the effects of the alleged
violation.
Complainant appealed the agency's dismissal to the Commission stating
that his complaint is not moot and he is still the victim of the RAC's
ongoing vendetta. He stated that the RAC, after receiving information of
complainant's pending transfer to Chicago, contacted complainant's new
supervisor to "warn" him about complainant in order to defame him and
damage his career. He also stated that the RAC gave him an "acceptable"
rating even though he had done more work than another agent who had
received an "outstanding" rating, and that his personnel file still
contains negative comments made by the RAC. Complainant stated that
St. Croix is considered as a hardship post for DEA agents and a memorandum
signed by the agency administrator states that following a three-year
tour of duty an agent will be granted a post of preference. Complainant
claimed that even though he had completed three years of duty at St. Croix
he was forced relocate to Chicago and his request for a preference post
was not granted. He also stated that the other claims in his complaint
are still not remedied.
EEOC Regulation 29 C.F.R � 1614.107(a) (5) provides that an agency shall
dismiss a complaint that is moot. A complaint is moot when the issues
presented are no longer live or the parties lack a legally cognizable
interest in the outcome. As a general rule, voluntary cessation of
allegedly illegal conduct does not remove the power to hear and determine
a case. A complaint is moot when (1) it can be stated 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. In determining if the
effects of any past discrimination have been completely eradicated, the
thrust of the inquiry is whether any further relief could be granted to
the complainant. Where a complainant identifies an unresolved personal
harm or shows that there remains a potential for such harm, he is
aggrieved and therefore states a claim. Taylor v. Postmaster General,
EEOC Appeal No. 0193 0089 (1992).
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a) (5) as
moot. Complainant in his appeal to the commission states that he is still
the victim of the actions of the RAC. The Commission finds that many of
the issues raised in the complaint are still unresolved. Accordingly,
the agency's final decision dismissing complainant's complaint is REVERSED
and the complaint is hereby REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
August 20, 2008
Date
2
0120082783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082783