01980763
10-07-1998
Horace E. Borders, Jr., Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Horace E. Borders, Jr., )
Appellant, )
)
v. ) Appeal No. 01980763
) Agency No. FDA-074-96
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed the first allegation in appellant's complaint, pursuant to
EEOC Regulation 29 C.F.R. �1614.107(d), on the grounds that appellant
raised the matter in an appeal to the Merit Systems Protection Board
("MSPB"). However, we further find that the agency improperly dismissed
the remaining two allegations on the grounds that they were rendered moot.
Appellant alleged that he was subjected to discrimination on the bases
of race (Black), age (DOB 3/21/50), and in reprisal for prior EEO
activity when:
On July 12, 1996, appellant was issued a letter of removal; an action
which he believed was too harsh, inasmuch as it was previously indicated
that other actions would be considered if he did not succeed as a
Compliance Officer;
On an ongoing basis, appellant's supervisor ("S1"), who carried a
grudge against appellant because she was forced to hire him, created
an environment in which he would not succeed as a Compliance Officer
by excluding him from meetings and attempting to alienate him from the
rest of the Branch; and
S1 failed to uphold a previous memorandum of agreement by denying
appellant training as a Compliance Officer and suggesting that appellant
attend training not required of his coworkers, i.e., that he enroll in
composition writing at a local junior college.
On October 2, 1997, the agency issued a final decision dismissing
allegation (1), pursuant to 29 C.F.R. �1614.107(d), because appellant
raised the matter in an appeal to the MSPB, and allegations (2) and (3),
pursuant to 29 C.F.R. �1614.107(e), because they were rendered moot by
appellant's termination.
The Commission notes that appellant sought, as remedial relief, that the
"[m]aximum amount of monies be awarded to complainant for civil violations
caused by [S1]."
EEOC Regulation 29 C.F.R. �1614.107(d) provides, in relevant part,
that the agency shall dismiss a complaint, or portion thereof, where
the complainant has raised the matter in an appeal to the MSPB. In the
instant case, the record contains a copy of an appeal appellant filed
with the MSPB on August 9, 1996, in which appellant raised the issue of
his termination. Accordingly, we find that allegation (1) was properly
dismissed as the basis of an appeal before the MSPB.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
the factfinder 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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
Upon review, we find that appellant's allegations have not been rendered
moot. While the agency contends that appellant's termination eradicated
the effects of the alleged discrimination and assured that the alleged
violation would not recur, appellant is presently challenging that
termination with the MSPB; consequently, should appellant prevail,
he could be returned to agency employment and allegations (2) and (3)
would not be moot. Furthermore, the Commission has held that an agency
must address the issue of compensatory damages when a complainant shows
objective evidence that he has incurred compensatory damages, and that
the damages are related to the alleged discrimination. Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). Should appellant
prevail on this complaint, the possibility of an award of compensatory
damages exists. See Glover v. USPS, EEOC Appeal No. 01930696 (December
9, 1993). Because appellant requested compensatory damages, the agency
should have requested that appellant provide some objective proof of the
alleged damages incurred, as well as objective evidence linking those
damages to the adverse actions at issue. See Benton v. Department of
Defense, EEOC Appeal No. 01932422 (December 10, 1993).
Accordingly, the agency's final decision dismissing allegation (1) is
AFFIRMED for the reasons set forth herein. The agency's final decision
dismissing allegations (2) and (3) was improper and is hereby REVERSED.
Those allegations are REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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(c) (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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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:
Oct. 7, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations