01980020
10-27-1998
Eufemio Rodriguez, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eufemio Rodriguez v. Department of the Air Force
01980020
October 27, 1998
Eufemio Rodriguez, )
Appellant, )
)
v. ) Appeal No. 01980020
) Agency No. 5U970002000
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The Commission finds that the agency erred in its September 12, 1997
decision dismissing appellant's complaint on the bases of failure to state
a claim and mootness under the provisions of 29 C.F.R.�1614.107(a)and
(e).
The record shows that appellant alleged that he had been discriminated
against on the basis of physical disability (none specified) when his
request to remain at work until the Reese closure date of September 30,
1997, was denied. Appellant requested, inter alia, compensation for his
mental anguish. Accordingly, appellant requested compensatory damages
in his complaint. The Commission has held that where a timely claim for
compensatory damages is made, the agency cannot dismiss the complaint
for mootness, as it did in this case, unless it can show that complainant
is not entitled to damages. Ellicker v. U.S. Department of Agriculture,
EEOC Request No. 05931079 (September 22, 1994).
The agency should have investigated this complaint and not dismissed
it for failure to state a claim: the only question for the agency to
consider is whether the complaint alleges employment discrimination
on a basis covered by EEO statutes. If the answer is yes, then the
agency must accept the complaint for processing, regardless of what
it thought of the merits. Odoski v. U.S. Department of Energy, EEOC
Appeal No. 01901496 (April 16, 1990). In the present case, we find
that appellant stated a claim based on his assertion that his request
to remain at work was denied.
Accordingly, the Commission hereby VACATES the FAD's dismissal
of appellant's complaint for failure to state a claim and mootness.
Appellant's complaint is hereby REMANDED for further processing consistent
with this decision and applicable regulations. The parties are advised
that this decision is not a decision on the merits of appellant's
complaint.
ORDER
The agency is ORDERED to process appellant's complaint pursuant to
the provisions of 29 C.F.R.�1614.108. The agency shall acknowledge
to the appellant that it has received the complaint and within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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� (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. �1614.410.
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. �l6l4.604(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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations