0120063948
03-16-2007
Rhonda N. Baird, Complainant, v. Vincent K. Snowbarger, Acting Executive Director, Pension Benefit Guaranty Corporation, Agency.
Rhonda N. Baird,
Complainant,
v.
Vincent K. Snowbarger,
Acting Executive Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 01200639481
Agency No. 05-12
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 17, 2006, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American), national origin (Trinidad and
Tobago), sex (female), and in reprisal for prior protected EEO activity
arising under Title VII when:
1. the Human Resources Department (HRD) and other Pension Benefit
Guarantee Corporation (PBGC) officials failed to investigate her complaint
relating to receiving inappropriate e-mails from agency employees;
2. she was unlawfully targeted for harassment and mistreatment to punish
her for her protected activities when on June 16, 2005, she was singled
out to acknowledge receipt of an e-mail concerning the Inappropriate
Use of PBGC Resources.
We first note that upon complainant's initial filing of her formal
complaint on August 24, 2005, the agency partially accepted her complaint
for investigation. In an acceptance letter dated December 8, 2005,
the agency accepted claim 1 for investigation, but dismissed claim
2 for failure to state a claim based on vagueness, and because it
appeared complainant had not raised the issue with the EEO Counselor.
Complainant disputed this finding with the EEO Director in a letter dated
December 30, 2005. The acceptance letter was revised on February 10,
2006, to include claim 2. The accepted issues were further disputed by
complainant on February 21, 2006, as she argued that the accepted issues
omitted her phrase "and other PBGC officials" from claim 1.
The agency HRD, in the meantime, had carried out an investigation into
complainant's claims regarding the inappropriate e-mails, and issued a
memo summarizing the results of that investigation on February 16, 2006.
It declined to provide a copy of the actual investigation to complainant.
Subsequently, the agency issued its final agency decision (FAD), dated
May 17, 2006, dismissing complainant's complaint in its entirety.
The agency dismissed claim 1 for failure to state a claim finding
complainant was not aggrieved as the investigation had been carried out,
and for mootness, finding that complainant had now received the remedy
she sought, the investigation. It dismissed claim 2 for failure to state
a claim, finding that complainant was not the only employee to be asked
to acknowledge receipt of the e-mail, and that the agency's actions were
not disciplinary in nature. Complainant submitted argument on appeal
disputing those findings, which the agency opposed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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, .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).
We find that the agency has gone to the merits of complainant's complaint
for claim 1 in the reasoning it gives for why it does not state a claim.
The agency cites the results of the internal investigation conducted by
the Human Resources Department and an outside law firm. However, we
note that these findings go to the substance of complainant's claims,
as opposed to whether or not she has stated a claim. The findings of
the HRD investigation and the underlying dispute between complainant and
the other agency employees involved are irrelevant to the procedural
issue of whether she has stated a justiciable claim under Title VII.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996); Lee v. United States Postal Service, EEOC Request
No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal
Service, EEOC Request No. 05910642 (August 15, 1991). Her claim was that
the agency discriminatorily not had conducted an investigation into her
complaint regarding the e-mails from co-workers. It is the failure to
investigate that is the root of her claim. Just because 10 months after
her initial complaint to HRD about the e-mails, the HRD finally completed
an investigation does not mean that complainant did not state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant'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); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
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. United States
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request
for reconsideration denied, EEOC Request No. 05930306 (February 1,
1993). Should complainant prevail on this complaint, the possibility
of an award of compensatory damages exists. See Glover v. United
States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).
Because complainant requested compensatory damages, the agency should
have requested that complainant provide some objective proof of the
alleged damages incurred, as well as objective evidence linking those
damages to the adverse actions at issue. See Allen v. United States
Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton
v. Department of Defense, EEOC Appeal No. 01932422 (December 3, 1993).
As the agency failed to address the issue of compensatory damages, we find
that dismissal of claim 1 on the grounds that it was rendered moot was
improper. See Rouston v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (March 18, 1999).
Regarding claim 2, we find that the agency was incorrect when it dismissed
that claim for failure to state a claim as well. Again, the agency
has gone to the merits of complainant's claim when it found that other
employees were asked to acknowledge receipt of the e-mail concerning the
Inappropriate Use of PBGC Resources. This clearly addresses an element
of the merits of the case, and would be more appropriately raised in the
context of the agency's statement of a legitimate, non-discriminatory
reason for its actions. Therefore we reverse the agency's dismissal of
this claim as well.
The Commission finds that the agency improperly dismissed complainant's
complaint, and we therefore reverse and remand for further processing
in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims, as defined on
page 1 above, in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant 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 complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
3-16-07
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120063948
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120063948