01983863
06-09-1999
Antonio Galang, Appellant, vs. Togo D. West, Jr., Secretary, Department of Veteran Affairs, Agency.
Antonio Galang v. Department of Veteran Affairs
01983863
June 9, 1999
Antonio Galang, )
Appellant, )
) Appeal No. 01983863
vs. )
)
)
Togo D. West, Jr., )
Secretary, )
Department of Veteran Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his 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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint as moot and for alleging matters not discussed, or like or
related to those discussed, with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on August 6, 1997, alleging
discrimination on the basis of race (Filipino), color (brown), age
(d.o.b., 5/19/42), and reprisal (prior EEO activity) for admonishment
(February 26, 1997), harassment (February 26, 1997), reassignment (July
29, 1997), reprimand (February 16, 1997), and violation of privacy
(July 15, 1997). Upon realizing that some of these allegations were
raised with an EEO Counselor beyond the forty-five (45) day time limit
required by 29 C.F.R. �1614.105(a)(1), the agency sent appellant a
letter requesting an explanation as to why he initiated contact with an
EEO Counselor in an untimely manner. In his response (hereinafter, the
clarification letter), dated September 5, 1997, the appellant clarified
the dates and expounded upon some of the allegations. In addition, he
used this opportunity to raise new allegations. Specifically, in the
clarification letter, he alleges that he was discriminated against when:
(1) On June 26, 1997, as punishment for receiving unauthorized badges,
he was stripped of all authority as a police officer and required
to relinquish his badge and on June 29, 1997 when he was officially
reassigned to the motorpool in the Department of Engineering (other
officers who were implicated were reassigned to office work) ;
(2) On July 21, 1997, he was assaulted by another officer at the request
of his (appellant's) supervisor;
(3) On July 15, 1997, appellant's supervisor, via e-mail, transmitted
slanderous information about him throughout the VA Medical Center; and
(4) In June and July of 1997, he was denied the good performance monetary
award to which he was entitled (such an award had been given in secret
to two other officers during that same time period).
In its final agency decision, the agency appears to have ignored the
formal complaint and substituted it with the clarification letter.
Relying on the fact that the appellant retired on August 15, 1997, the
agency dismissed allegations (1) and (3) for mootness. Allegations (2)
and (4) were dismissed because they were not raised before an EEO
Counselor, nor were they like or related to matters raised before
an EEO Counselor. As the appellant points out in his statement on
appeal, his fifth allegation, violation of his privacy rights (which
was included in the formal complaint but not the clarification letter),
was not discussed in the final decision.
ANALYSIS AND FINDINGS
Allegations (1) and (3) - Mootness
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.
However, the Commission has held that where, as here, a complainant
alleges compensatory damages<0>, that issue must be addressed by the
agency before a final determination can be made as to the mootness of
the allegation(s). See Salazar v. Department of Justice, EEOC Request
No. 05930316 (February 9, 1994).
After a careful examination of the file, the evidence reveals that the
appellant, on appeal, is seeking compensatory damages. Therefore,
pursuant to our holding in Salazar, we find that that issue must be
addressed before allegations (1) and (3) can be dismissed as moot.
Allegations (2) and (4) - Failure to Raise the Matter Before an EEO
Counselor
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
In the agency's view, allegations (2) and (4) were not raised before
an EEO Counselor. The appellant, in his statement on appeal, contends
that they were. After a detailed review of the file, the Commission
agrees with the appellant with respect to allegation (2) and the agency
with respect to allegation (4). According to the counselor's report,
the issues counseled were reassignment, mistreatment by other employees,
and the transmittal of a slanderous e-mail. We find that the assault
alleged in allegation (2), although not raised specifically during the
EEO counseling, is "like or related to" an issue that was raised, that
is, being mistreated by other employees. Accordingly, that issue should
have been accepted for investigation. Conversely, allegation (4), the
denial of a performance monetary award, is not like or related to any of
the issues that was raised during the counseling process, and therefore,
was properly dismissed.
Allegation (5) - Violation of Privacy
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that
fails to state a claim. For our purposes, in order to state a claim,
an allegation must first be within the purview of the EEO process,
meaning that the appellant must allege employment discrimination on
a basis set forth in one of the statutes enforced by the Commission.
Cartrett v. United States Postal Service, EEOC Request No. 05950744
(February 8, 1996).
We have consistently held that an action which violates the Privacy Act
is not within the purview of Title VII and the other Regulations which
we enforce. See Osborn v. United States Postal Service, EEOC Request
No. 05950654 (April 26, 1995). Therefore, allegation (5) is dismissed
for failure to state a claim.
Accordingly, the decision of the agency, with respect to allegations (1),
(2), and (3) was erroneous and is, therefore, REVERSED and REMANDED,
in part, for further processing in accordance with this decision and
the proper regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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:
June 9, 1999
____________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
01. We have held that compensatory damages are available to federal
sector complainants in the administrative process. See Jackson v. United
States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992),
Request for Consideration Denied, EEOC Request No. 05930306 (February 1,
1993) (holding that the Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 authorizes compensatory damages for federal employees).