01983574_r
05-12-1999
Patricia K. Brady, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Patricia K. Brady, )
Appellant, )
)
v. ) Appeal No. 01983574
) Agency No. 98-0019-HQ
Carol M. Browner, )
Administrator, )
Environmental Protection )
Agency, )
Agency. )
______________________________)
DECISION
On April 1, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on March 6, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In her complaint, appellant alleged that she
was subjected to discrimination on the basis of reprisal for prior EEO
activity when:
During the month of January 1997, appellant �embarked in a home
improvement project.� This project was undertaken at a time when no
job related commitments were planned. During February 1997, appellant
was informed by her supervisor that a two-week training course had
been scheduled for her in Atlanta, Georgia. Appellant requested to
be excused from attending the training. Appellant's supervisor denied
her request and threatened her with charges of insubordination if she
refused to attend. The training was later canceled.
Based on medical treatment initiated due to job related stress,
appellant's doctor wrote a letter to her supervisor asking that during
an upcoming two-week training course (scheduled for July 7 - 18, 1997)
she be allowed to �observe rather than participate� in the training.
On August 13, 1997, appellant met with her first and second-line
supervisors. During this meeting, appellant's second-line supervisor
informed appellant that he �was restricting [appellant's] duties, and
instructed [appellant] to turn in [her] deputation card.� On November
13, 1997, the restriction in the performance
of her duties was lifted and her deputation card returned.
In July 1997, appellant requested to attend the Interagency Committee
on Women in Federal Law Enforcement (ICWIFLE) Training Conference in
Washington, D.C. The registration fee for this conference was $250.00,
and no travel expenses were required. Appellant's request was denied
due to budgetary constraints. Later, two managers located in Chicago
and San Francisco, were approved to attend training in Colorado.
The tuition alone for each manager was $2,650.00.
The agency accepted allegation (3), but dismissed allegations (1)
and (2) pursuant to EEOC Regulation 29 C.F.R. �1614.107(e), for being
moot. Specifically, the agency found that because the training class
was canceled, allegation (1) had been rendered moot. Further, the
agency found that in allegation (1), the agency only proposed to take
disciplinary action against appellant. Regarding allegation (2), the
agency found that because appellant was taken off of restricted duty,
and her deputation card was returned, allegation (2) also had been
rendered moot.
On appeal, appellant notes that she never alleged that disciplinary action
was taken against her in allegation (1), and argues that her manager
discriminated against her by showing no sensitivity to appellant's
personal commitments and threatening discipline when a simple denial
of her request would have sufficed. Appellant further claims that her
personal doctor and the doctor who performed her fitness for duty exam
were both aware of appellant's medication, but neither recommended any
work restrictions for appellant. Appellant claims that she was denied
training opportunities and other benefits of employment during her
restriction period.
The remedy requested in appellant's formal complaint, dated November 25,
1997, includes, inter alia, compensatory damages.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges
that a proposal to take a personnel action, or other preliminary step
to taking a personnel action, is discriminatory. In the present case,
appellant admits that no disciplinary action was taken against her,
but that she was threatened with a personnel action. Accordingly,
the agency's dismissal of allegation (1) is AFFIRMED.<1>
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.
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. 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). Therefore, we find that
appellant may still be aggrieved as a result of the matters in question.
Accordingly, the agency's dismissal of allegation (2) is REVERSED, and
the allegations are hereby REMANDED to the agency for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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:
May 12, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 1Since we are affirming the agency's
dismissal of allegation (1) on the grounds of only alleging a
proposed action, we will not address the agency's alternative
grounds for dismissal, i.e., that the allegation is moot.