0120160204
05-11-2016
Wilbert W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbert W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160204
Agency No. 200I05482015100904
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 17, 2015, dismissing his 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
At the time of events giving rise to this complaint, Complainant worked as a Biomedical Equipment Support Specialist at the Agency's Medical Center in West Palm Beach, Florida.
On January 15, 2015, Complainant filed a formal complaint alleging that he was subjected to ongoing harassment sufficient to create a hostile work environment on the basis of sex (transgender). In support of his claim, Complainant provided the following examples of the harassment:
1. Since September 2014, the Biomedical Engineering Chief ("Chief") summoned Complainant into his office at least once or twice a day to tell him that his performance was inadequate.
2. On September 9, 2014, the Chief ordered Complainant to undergo a psychological Fitness-for-Duty exam.
3. On or about September 16, 2014, Complainant was placed on a Performance Improvement Plan (PIP).
4. On November 17, 2014, the Chief submitted a proposal to the Union stating his intent to change Complainant's tour of duty.
5. On November 24, 2014, the Chief ordered Complainant to turn in his key to the room where his safety cabinet was located and where he stored solvents and marine parts.
6. On November 24, 2014, Complainant discovered that his desk had been tampered with.
On July 4, 2015, Complainant committed suicide.
On September 17, 2015, the Agency issued its final decision dismissing the complaint as moot pursuant to 29 C.F.R. � 1614.107(a)(5). The Agency determined that Complainant failed to request compensatory damages in his complaint. As such, the Agency found that Complainant's death had completely and irrevocably eradicated the effects of the alleged discrimination. On this basis, the Agency dismissed the complaint.
This appeal followed, filed by Complainant's estate.
ANALYSIS AND FINDINGS
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. Dep't 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.
As an initial matter, we note that the Commission has held that a complainant's claim is not extinguished merely because of his death. Phillips v. Department of the Air Force, EEOC Request No. 05910930 (January 31, 1992). We have also held that a federal employee's discrimination complaint that has the potential for monetary relief survives the death of the complainant. Hanley v. Department of Veterans Affairs, EEOC Appeal No. 01890296 (April 11, 1989).
On appeal, the estate, through its attorney, argues that Complainant's death did not completely and irrevocable eradicate the effects of the alleged discrimination, noting the Agency based its determination in this regard on its finding that Complainant did not request compensatory damages. The estate formally moved to amend the complaint, if necessary, to include an explicit request for compensatory damages. Moreover, the estate argued that Complainant did not have to use any "magic words" to have made a request for compensatory damages, and that the "very nature" of his allegations put the Agency on notice that he had suffered non-pecuniary damages. The estate provided incident reports filed by Complainant with the Agency in which he noted treatment, especially by the Chief that he characterized as hostile and intimidating, and indicated that he suffered humiliation and anxiety as a result of these actions. Furthermore, the estate produced leave records showing Complainant had put the Agency on notice that he was forced to take unpaid leave as a result of "anxiety/stress from hostile work environment," indicating he also suffered pecuniary damages. In addition, it submitted a Family and Medical Leave Act request for extended leave, signed in February 2015, noting Complainant was experiencing depression, anxiety, tachycardia and fear of leaving his house as a result of "recent events" at work. Finally, the estate produced an affidavit from Complainant's mother stating that, after his death, Complainant's psychiatrist told her that the harassment at work may have contributed to his suicide.
The Agency is correct that Complainant, when he filed his formal complaint, did not expressly request compensatory damages as a remedy. However, we agree with the estate's arguments on appeal that his description of the alleged harm he experienced can be construed as a request for compensatory damages. See Gilberto S. v. Department of the Air Force, EEOC Appeal No. 0120151198 (March 11, 2016); Miller v. United States Postal Service, EEOC Appeal No. 01944372 (February 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).
Moreover, in this case, the estate has made a formal request to amend the complaint to include an explicit request for compensatory damages. The Commission has permitted such an amendment on appeal in similar cases. Estate of Angela Leberknight v. Department of Defense, EEOC Appeal No. 01A05899 (July 11, 2001); Estate of Ellen McClinton v. Social Security Administration, EEOC Appeal No. 01973079 (May 12, 1999). Accordingly, we permit the estate to amend the complaint in this case to include a request for compensatory damages. The Commission has consistently held that where a complaint states a claim for compensatory damages, it may not be dismissed as moot. See Messer v. Department of Defense, EEOC Request No. 05950362 (August 30, 1996).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter to the Agency in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded hostile work environment claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 11, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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