01994966_r
03-15-2001
Anthony R. Alonzo, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Anthony R. Alonzo v. Department of Veterans Affairs
01994966
March 15, 2001
.
Anthony R. Alonzo,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994966
Agency Nos. 98-4660
99-0805
DECISION
BACKGROUND
Complainant filed two complaints alleging discrimination on the bases of
national origin (Hispanic/Mexican), color (brown), disability, and in
reprisal for prior EEO activity. The agency dismissed each complaint
in a separate final decision. Complainant appealed the dismissals on
May 25, 1999, and the Commission docketed both appeals as EEOC Appeal
No. 01994966.
In Agency No. 98-4660, complainant alleged harm when the Substance
Abuse Coordinator at Mather Outpatient Clinic was given the position
of Clinic Manager. The agency dismissed this complaint for failure
to state a claim, and for stating the same claim raised in a prior
complaint. The agency found that complainant filed a prior complaint
concerning nonselection for the Substance Abuse Coordinator position.
According to the agency, complainant alleged that he would have been
detailed to Clinic Chief if he had been given the Substance Abuse
Coordinator position. Consequently, the agency found that his claim,
concerning the duties of a coworker, failed to state a claim, and stated
the same claim raised in the nonselection complaint.
In Agency No. 99-0805, complainant alleged harm from the following:
On February 12, 1999, when complainant reported to Mather Inpatient
Clinic, he was told by the Administrative Officer that he would share an
office with the Utilization Review (UR) Nurse, and neither the computer
nor telephone had been installed; and
Complainant found stored equipment in his assigned office, and the Chief
of Operations told complainant that he would have to take the office
or nothing.
The agency also dismissed Agency No. 99-0805 for failure to state a claim.
The agency explained that complainant's computer and phone were installed
on February 23, 1999, and the UR Nurse was moved out of his office
on March 16, 1999. The agency also noted that when complainant moved
to the Inpatient Clinic, the facility was undergoing a renovation. The
agency was storing equipment in the office not being painted at the time.
Given this information, the agency found that complainant suffered no harm
to a term, condition, or privilege of employment from the matters alleged.
ANALYSIS AND FINDINGS
A. Agency No. 98-4660
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race, sex,
religion, national origin, age, disability, or prior protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). The same regulation provides for the dismissal of
complaints stating the same claim pending before or decided by the agency
or Commission. See 29 C.F.R. � 1614.107(a)(1).
In a prior complaint, Agency No. 98-1962, complainant alleged harm from
not being selected for Substance Abuse Coordinator. In counseling for
the present complaint, complainant alleged that a coworker was given
the Substance Abuse Coordinator position in order to give him the Clinic
Manager position. Complainant explained that if he had been given the
Substance Abuse Coordinator position, then the agency would have to
make him the Clinic Manager. This matter does not involve a new claim.
Accordingly, the agency's dismissal is AFFIRMED.
B. Agency No. 99-0805
Although the agency dismissed the complaint for failure to state a claim,
its rationale is a mootness analysis. Complainant clearly suffered harm
to the terms, condition, or privileges of his employment when he was
forced to share an office, did not have telephone or computer access,
and found equipment stored in his office.
The agency may dismiss moot complaints. See 29 C.F.R. � 1614.107(a)(5).
Where complainant requests compensatory damages, the agency must request
evidence to support complainant's request, and address whether damages
are appropriate for the otherwise moot complaint. Absent such findings,
the Commission cannot find the complaint moot. See Rouston v. National
Aeronautics and Space Administration, EEOC Request No. 05970388 (March
18, 1999). In the present complaint, complainant requested $300,000
in compensatory damages; therefore, the Commission cannot find the
complaint moot.
CONCLUSION
Accordingly, the agency's dismissal in Agency No. 98-4660 is AFFIRMED.
However, its dismissal in Agency No. 99-0805 is REVERSED, and the
complaint is REMANDED for further investigation.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
March 15, 2001
_________________
Date