0120121576
08-14-2012
Mostafa Eldakdoky, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Mostafa Eldakdoky,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120121576
Hearing No. 570-2011-00367X
Agency No. FAS-2010-00458
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated February 8, 2012, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Food Technologist and International Issues Analyst at the Agency's Washington, D.C. facility. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity.
The Agency accepted the following claim for investigation:
Whether the Agency subjected Complainant to discrimination based on reprisal when on March 15, 2010, a supervisor named in a previous EEO complaint assigned him duties at the GS-7/9 level, even though he is currently an employee at the GS-14 level and his assigned duties did not match his education and experience.
Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 3, 2012, the Agency filed a Motion to Dismiss. On January 12, 2012, the AJ issued an Order of Dismissal. Therein, the AJ dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, the AJ stated that "Complainant began performing his detail duties on January 17, 2010; however, he did not initiate contact with an EEO Counselor until March 15, 2010...I find that in January 2010, he was aware of his newly assigned duties and therefore, had sufficient information to form a reasonable suspicion about the Agency's alleged discriminatory actions."
The AJ also dismissed Complainant's complaint on the alternate grounds that the formal complaint had been rendered moot. The AJ states that Complainant's detail ended in July 2010, and he is no longer an employee of the Agency; thus, there is no reasonable expectation the alleged discriminatory actions will recur. The AJ further noted that Complainant did not make a request for non-pecuniary compensatory damages.
The Agency issued a final order dated February 8, 2012, fully implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the AJ's dismissal of the formal complaint is improper. Regarding the AJ's dismissal on the grounds of untimely EEO Counselor contact, Complainant asserts that the Agency action was an ongoing discriminatory event and not a one time act. Regarding the AJ's dismissal on the grounds that the matter had been rendered moot, Complainant acknowledges that the detail ended in July 2010, but that the effect of the Agency action have not been eradicated. Complainant states he was humiliated by the alleged discriminatory act. Finally, Complainant asserts that he did request to be detailed as schedule B or permanent job and to work in a job that matches his education, experience, and background and that "this is a non-pecuniary compensatory damage."
In response, the Agency requests that we affirm its final order. The Agency reiterates that Complainant's formal complaint should be dismissed on the grounds of untimely EEO Counselor contact and on the grounds that it has been rendered moot. Regarding the dismissal on the grounds of mootness, the Agency asserts that Complainant did not expressly seek compensatory damages. In addition, the Agency asserts that Complainant's formal complaint does not constitute an adverse action and should be dismissed for failure to state a claim.
ANALYSIS AND FINDINGS
Dismissal for Untimely EEO Counselor Contact
The AJ improperly dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. A fair reading of the record reflects that Complainant is alleging ongoing discrimination when he was continuously assigned low level duties in a detail. The record reflects that Complainant's detail was from January through July 2010. Complainant asserts that he was assigned low level duties both before and after he initiated EEO contact and that this assignment was a continuous discriminatory act. The Commission has found that repeated occurrences of the same discriminatory employment action can be challenged as long as one discriminatory act occurred within the charge filing period. EEOC Compliance Manual, Section 2: Threshold Issues, 2-IV, C, 1, a (rev. July 21, 2005). Because Complainant alleges that the assignment of low level duties was ongoing and continued within the 45 days preceding his EEO contact, we find Complainant's March 15, 2010 EEO Counselor contact to be timely.
Dismissal for Mootness
The Commission has held that an agency must address the issue of compensatory damages when a complainant shows objective evidence that she has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for reconsideration denied, EEOC Request No. 05930306 (Feb. 1, 1993). Should complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993).
On appeal, Complainant asserts that he was humiliated by the alleged discriminatory action. We find this to be a request for compensatory damages. See Miller v. U.S. Postal Serv., EEOC Appeal No. 01944372 (Feb. 7, 1995) (finding that complainant's statement regarding physical and mental anguish to be sufficient to place the agency on notice that she may be seeking compensatory damages). We further note that Complainant also asserts that he experienced humiliation in his EEO Complaint Input at Intake form dated March 25, 2010, and in an attachment to his formal complaint.
The potential availability of compensatory damages in this case precludes a finding of mootness, because there may be some additional relief to which complainant is entitled.
Dismissal for Failure to State Claim
The Agency also asserts that the instant matter should be dismissed for failure to state a claim, we disagree. Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. In the instant matter, Complainant is alleging that he was continuously assigned low level duties based on reprisal, we find that this matter is reasonably likely to deter Complainant or others from engaging in protected activity.
CONCLUSION
We REVERSE the Agency's final order implementing the AJ's decision dismissing Complainant's formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within 30 days from the date this decision becomes final, the Agency shall submit to the Hearings Units of the appropriate EEOC Office a request for a hearing, as well as the complaint file. The Agency shall provide written notification to the Compliance Officer referenced below that the hearing request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 14, 2012
Date
2
0120121576
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121576