01980892
10-19-1998
Kerry J. Koch, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Kerry J. Koch, )
Appellant, )
)
v. ) Appeal No. 01980892
) Agency No. DM-97-121
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
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 Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was
received by appellant on October 7, 1997. The appeal was received by
the Commission on November 10, 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.
On July 17, 1997, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the basis
of disability. Therein, appellant stated that he worked as a Packer
Leader for approximately nine years, and that he was declared "excess"
in March 1994. Appellant further stated that in November 1995, his
security clearance was revoked, purportedly as a result of having been
in a rehabilitation center. Appellant stated that in August 1996, he
was informed that he would be placed on an internal stopper list until a
vacancy became available for which he would qualify. Appellant alleged
that, since that time, several positions for which he has qualified have
become available, and that the agency has not offered him those positions.
Appellant further alleged that one such position is a Transportation
Assistant GS-07 position located in the agency's New Cumberland facility.
Appellant alleged, moreover, that he was erroneously informed by a
Personnel official that placement into the GS-07 position would constitute
a promotion for appellant and that he was not afforded priority placement.
On October 3, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of
the allegation that he was not placed in a permanent position after
he was "declared excess" as a Pack Leader, WL-7002-06, in March 1994.
The agency dismissed appellant's complaint for failure to state a claim.
The agency also dismissed appellant's complaint on the alternative grounds
of mootness. Specifically, the agency found that the downsizing of
the facility where appellant is employed, resulted in the abolishment
of appellant's permanent position and his placement in an "excess"
status, but did not result in a reduction-in-force; and that instead,
appellant was offered and accepted a permanent position as a Packer
Leader, WL-7002-06, effective August 11, 1997. The agency determined
that the Packer Leader position is in the same series and grade as the
position in which appellant had been declared excess in March 1994, and
that the effects of the alleged discriminatory acts have been completely
eradicated, and that there is no reasonable expectation that the alleged
discriminatory events will recur.
On appeal, appellant argues that his complaint was improperly dismissed
for failure to state a claim. Appellant argues he is aggrieved as a
result of the agency's actions in allowing him to remain in a lower
graded position and by not placing him into the next available GS-7
position for which he is qualified. Appellant further argues that the
complaint was improperly dismissed on the alternative grounds of mootness.
Appellant specifically argues that the effect of alleged discriminatory
action cannot be eradicated until he is placed in a GS-7 position.
In response, the agency argues that appellant's complaint was properly
dismissed for the reasons set forth in its final decision.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In the present case, appellant alleged that he was not selected for a
position of Transportation Assistant, GS-2102-07. Appellant's allegation
is sufficient to render him an aggrieved employee. Because appellant has
alleged that the adverse action was based on disability, he has raised
an allegation within the purview of the EEOC regulations. Accordingly,
the agency's decision to dismiss appellant's complaint for failure to
state a claim was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall
dismiss a complaint that is moot. To determine whether the issues raised
in appellant's complaint remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if the interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
The agency determined that appellant's complaint has been rendered moot
because appellant was placed in a Packer Leader, WL-7002-06 position
subsequent to the abolishment of his prior position in March 1994;
and that the Packer Leader position is the same series and grade as the
former position. We find, however, that appellant's complaint addresses
the matter of his determination that he merited placement into a GS-7
position subsequent to the abolition of his permanent position in March
1994, and that the agency failed to place him into a GS-7 position.
We therefore determine that appellant's placement into the Packer Leader,
WL-7002-06 position has not completely and irrevocably eradicated the
effects of the alleged violation. We further find that the second prong
of the County of Los Angeles v. Davis test has not been met. Accordingly,
the agency's decision to dismiss appellant's complaint on the grounds
of mootness was improper and is REVERSED. Appellant's complaint is
REMANDED to the agency for further processing.
In conclusion, we note that appellant's case has been through the
investigative stage and appellant indicated his desire for a hearing
before an Administrative Judge. Therefore, on remand, the agency shall
continue processing appellant's complaint in accordance with the Order
below.
ORDER
The agency is ORDERED to refer appellant's case to the appropriate
District Office for assignment of an Administrative Judge to conduct a
hearing on appellant's complaint. The agency shall request assignment
of an Administrative Judge within fifteen (15) calendar days of the
date this decision becomes final. A copy of the agency's request 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 (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:
Oct. 19, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations