Halbert D. Carranza, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionFeb 10, 2004
01A34696_r (E.E.O.C. Feb. 10, 2004)

01A34696_r

02-10-2004

Halbert D. Carranza, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Halbert D. Carranza v. Department of Justice

01A34696

February 10, 2004

.

Halbert D. Carranza,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A34696

Agency No. B-03-2474

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 14, 2003, 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.

The agency defined complainant's complaint as alleging discrimination

on the basis of race (Hispanic) when:

Since complainant has been employed in the Los Angeles Field Office

(LAFO) in 1997, he has observed and overheard comments from LAFO

supervisors and certain Special Agents that were racial in nature and

discriminatory; and

On March 7, 2003, complainant was informed that he was selected to

be transferred/relocated to the Dallas Field Office. Subsequently,

complainant was told to report to his new work location not later than

September 30, 2003.

The agency dismissed issue (A) pursuant to the regulation set forth at 29

C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency stated

that remarks unaccompanied by a concrete agency action are not sufficient

to render an individual aggrieved. The agency noted that complainant

failed to establish that any adverse action followed those remarks,

and thus concluded that he failed to state a claim. Additionally, the

agency dismissed issue (B) pursuant to the regulation set forth at 29

C.F.R. � 1614.107(a)(5). The agency noted that the notice of intent to

transfer/relocate complainant to Dallas no later than September 30, 2003,

was dated March 7, 2003. The agency claimed that this was a proposed

action which was nullified when complainant gained employment

with another agency, effective July 13, 2003. The agency claimed that

complainant's decision to acquire employment with another agency prior

to the date he was expected to report to his new assignment, renders

his transfer claim moot.

On appeal, complainant claims that the decision to transfer him was

definite and not proposed. He claims that he was harmed in that he had

no other option but to look for employment elsewhere or be transferred

to Dallas.

In response to complainant's appeal, the agency argues that the complaint

should by dismissed for failure to state a claim. The agency claims

that complainant was not aggrieved by the proposed transfer because

it was not implemented as a result of the complainant's decision to

transfer to another agency. The agency argues that where a reassignment

has not occurred at the time of the complaint, such a reassignment is

merely a �threatened� rather than actual harm, and is not actionable.

Further, the agency argues that if the transfer had occurred, it would

not support a prima facie case of racial discrimination. The agency

states that the action was not adverse since the transfer would have

been to a lateral position, to the same OIG Special Agent position in

another location, with the same pay and benefits, and with the same

job description and responsibilities. The agency states that the only

difference was that complainant would be performing his duties at another

OIG Field Office. The agency noted that on March 7, 2003, complainant

was informed that he was selected for transfer to the Dallas Office and

was expected to transfer by June 30, 2003. The agency explains that

complainant requested special consideration and was allowed to extend

his reporting date until September 30, 2003. The agency claims that

complainant's transfer was subsequently nullified and became moot when

he obtained a criminal investigator position with another agency in the

same series and same grade level. Finally, the agency argues that it

properly determined the alleged remarks overheard by the complaint were

insufficient to create a hostile environment. The agency also stated

that this issue was untimely raised.

Upon review, we find that the agency properly dismissed issue (A) for

failure to state a claim. With regard to this issue, we find that

complainant has failed to show that he suffered a specific harm or

loss to a term, condition of privilege of employment for which there

is a remedy. Furthermore, the incident in issue (A) is insufficiently

severe or pervasive so as to state a claim of harassment.

With regard to issue (B), we find that the agency properly dismissed this

issue on the grounds that it is moot. The regulation set forth at 29

C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the

issues raised therein are moot. To determine whether the issues raised in

complainant's complaint are 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) 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); Kuo v. Department 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.

In the present case, we find that complainant's departure from the

agency constitutes an interim event that has eliminated the possibility

that the alleged violation will recur. Further, we find that there is

no relief available to complainant, i.e., complainant did not request

compensatory damages. Although complainant did request punitive damages,

we note that such damages are not available to federal employees.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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

February 10, 2004

__________________

Date