05970380
11-23-1998
Jo Ann Moore, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jo Ann Moore v. Department of the Army
05970380
November 23, 1998
Jo Ann Moore, )
Appellant, )
)
v. ) Request No. 05970380
) Appeal No. 01961000
Louis Caldera, ) Agency No. F09507F0590
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On January 15, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Jo
Ann Moore v. Togo D. West, Jr., Secretary, Department of the Army, EEOC
Appeal No. 01961000 (December 18, 1996). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons stated below, the Commission GRANTS appellant's request
with respect to allegation (2), referenced below.
BACKGROUND
Appellant filed a complaint in which she set forth six allegations of
discrimination on the bases of race (white), sex, and reprisal:
1a. She did not receive her original performance appraisal;
1b. She did not receive an award that was promised to her from the
contracting chief;
2. The contracting chief requested false statements from other management
personnel which were used to support a notice of proposed suspension
issued to appellant;
3. The contracting chief failed to present appellant with a plaque before
appellant departed Korea;
4. The contracting chief canceled appellant's selection for a level
three contracting course before appellant left Korea; and
5. Appellant was charged with leave during a portion of her transit time,
despite the fact that her orders dictated free travel time.
The previous decision affirmed the agency's dismissal of all six
allegations. In her request for reconsideration, appellant appears to be
arguing that the previous decision constitutes an erroneous interpretation
of law, regulation or material fact.
ALLEGATIONS (1b), (3), (4), and (5)
Commission regulations require the agency to dismiss allegations
which raise matters that have not been brought to an EEO counselor's
attention, and are not like or related to matters brought to an EEO
counselor's attention. 29 C.F.R. �1614.107(b). The agency dismissed
allegations (1b), (3), (4) and (5) for failure to present those matters
to an EEO counselor. Appellant contacted an EEO counselor on March 7,
1995, and again on April 25. Neither the counselor's report nor any
other documents in the case file provide any indications that appellant
raised the matters at issue in allegations (1b), (3), (4), or (5) prior
to filing her formal complaint. Appellant claims in the second paragraph
of her request for reconsideration that she raised these issues with a
counselor, but provides no argument or evidence supporting her claim.
She likewise has not presented any argument or evidence that the matters
at issue in allegations (1b), (3), (4), and (5) are like or related to
matters that she did raise with a counselor. The Commission therefore
finds that the agency properly dismissed allegations (1b), (3), (4),
and (5).
ALLEGATION (1a)
Commission regulations also require the agency to dismiss complaints
that are moot. 29 C.F.R. �1614.107(e). A case is moot when there is
no reasonable expectation that the alleged violation will recur and
the effects of the alleged violation have been eradicated by interim
relief. Douglas v. United States Postal Service, EEOC Request No. 05950053
(April 18, 1996). The agency dismissed allegation (1a) for mootness.
In her complaint, appellant maintained that she was entitled to an
appraisal rating of "one" on a scale of one through five, with one
being the highest level. She also maintained that she was entitled
to an acknowledgment that she had achieved more than fifty percent of
her job objectives for the year. The agency presented an appraisal for
appellant dated March 13, 1995, showing that appellant had received both
an annual overall rating of "one" and a notation that she had achieved
more than fifty percent of her objectives. This relief is sufficient to
eradicate the effects of the alleged discrimination and to ensure that
any discrimination in connection with appellant's performance evaluation
does not recur. The Commission therefore affirms the agency's dismissal
of allegation (1a).<1>
ALLEGATION (2)
Regarding allegation (2), the proposed suspension was changed to a letter
of reprimand that was ultimately removed from appellant's personnel
folder. Appellant admits as much in paragraph (4) of her request. In
her formal complaint, however, appellant specifically asked for damages
for emotional injury that she suffered because of the allegedly false
statements made by her supervisors and managers. Since appellant may
be entitled to compensatory damages, we find that the effects of the
alleged discrimination have not been completely eradicated and that the
allegation therefore is not moot. Pritt v. United States Postal Service,
EEOC Request No. 05950792 (July 3, 1997). The agency has not presented
any other grounds for dismissing allegation (2). We will therefore
remand this allegation for processing.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to grant appellant's request. The decision
of the Commission in Appeal No. 01961000 remains the Commission's
final decision with respect to allegations (1), (3), (4), and (5).
The Commission's decision in Appeal No. 01961000 is reversed, however,
with respect to allegation (2). The agency's final decision dismissing
allegation (2) is reversed and the matter remanded for processing
in accordance with our order below. There is no further right of
administrative appeal from a decision of the Commission on request for
reconsideration.
ORDER (E1092)
The agency is ORDERED to process the allegation (2), referenced above,
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 acknowledgement 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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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. 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:
NOV 23, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant did not request compensatory damages in connection with
allegation (1a).