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