01976470
10-15-1998
Jimmy Durham, Appellant, v. Louis Caldera, Secretary, Department of the Army Agency.
Jimmy Durham v. Department of the Army
01976470
October 15, 1998
Jimmy Durham, )
Appellant, )
)
v. ) Appeal No. 01976470
) Agency No. DAY95AR39E
Louis Caldera, )
Secretary, )
Department of the Army )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The final agency decision was dated August 1, 1997. The appeal
was postmarked August 20, 1997. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint as moot.
BACKGROUND
Appellant contacted an EEO counselor on November 8, 1994, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when on October 6, 1994 he did not receive an
exceptional rating on his performance evaluation. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on December
19, 1994, appellant timely filed a formal complaint of discrimination on
the basis of disability (unspecified). The record indicates that appellant
subsequently retired from federal service effective October 1, 1996.
On July 14, 1997, an EEOC Administrative Judge (AJ) issued a Recommended
Decision finding that appellant's complaint should be dismissed as moot.
The AJ determined that because appellant is no longer employed by the
agency and is not expected to return, there is no reasonable expectation
that further adverse actions will occur as a result of appellant's 1994
performance evaluation. The AJ further concluded that because appellant
will not receive any additional performance evaluations, there is no
possibility that a further evaluation would be discriminatory.
On August 1, 1997, the agency issued its final decision dismissing
appellant's complaint as moot. The FAD adopted the AJ's recommendation
that appellant's complaint be dismissed as moot pursuant to 29 C.F.R.
�1614.107(e), because appellant had retired from federal service. This
appeal followed.
ANALYSIS AND FINDINGS
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 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). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
Given appellant's retirement from the agency, there is no reasonable
expectation that the alleged discrimination will recur. However, it
cannot be said that the effects of the alleged discrimination have been
eradicated. Although the agency indicates that appellant has retired
from federal service, it cannot assure that appellant's future employment
will not be impacted by appellant's 1994 performance evaluation in which
he received a rating less than exceptional. Accordingly, the Commission
finds that appellant's complaint is not moot.
We find further that on appeal appellant appears to raise an issue of
constructive discharge in connection with his performance evaluation.
In his appeal statement appellant asserts that he was forced to accept
an early retirement because he received a performance evaluation of
highly successful rather than exceptional. Appellant contends that
had he received an exceptional rating in 1994, he would not have been
forced to retire during an agency reduction if force which occurred in
the summer of 1996. There is no indication that appellant has sought
counseling on this issue. If in fact, appellant wishes to pursue a
claim of constructive discharge, he should contact an appropriate agency
official in accordance with EEOC Regulations.
CONCLUSION
Based on a thorough review of the record, the agency's final decision
dismissing appellant complaint as moot is hereby REVERSED and the
complaint is REMANDED to the agency for further processing.
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 (MO795)
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 (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 15, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations