01990550
12-28-2000
Arthur J. O' Leary, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Arthur J. O' Leary v. Department of Health and Human Services
01990550
December 28, 2000
.
Arthur J. O' Leary,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01990550
Agency No. HCF-024-96
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 21, 1998, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of age (59) when:
On August 8, 1995, management removed complainant from the position of
Associate Regional Administrator (ARA), Division of Medicaid and he was
detailed to unclassified duties.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness.
Specifically, the agency noted that complainant's detail ended on
October 28, 1996, and he was returned to his permanent position as
Program Manager or Associate Regional Administrator/ARA, GS-340-15.
In addition, the agency stated that complainant suffered neither loss of
pay nor benefits during his detail/reassignment. The agency noted that
the official responsible for complainant's detail/reassignment retired
effective October 3, 1996. Finally, the agency stated that although
complainant requested $125, 000 for the pain and suffering he experienced,
compensatory damages are not available under the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Thus, the agency concluded that interim events, i.e. complainant's return
to his former position and the retirement of the responsible management
official, have rendered complainant's complaint moot.
On appeal, complainant argues that his complaint should not be dismissed
as moot. Complainant claims that there is a reasonable expectation that
the alleged violation could recur. Specifically, complainant notes
that in 1997, a Black female manager eight to ten years older than him
was removed from her position as Deputy Regional Administrator, detailed
to unclassified duties, and treated in a demeaning manner. In addition,
complainant argues that interim events have not completely eradicated the
effects of the alleged violation. Complainant states that his removal
from his former position and the subsequent detail negatively effected
his professional reputation. Complainant claims that in January 1997,
when he applied for the position of Assistant Commissioner of Health,
the subject of his removal/detail was brought up at the interview.
Complainant states that although he does not know whether the removal
action was the deciding factor in his non-selection, the fact that the
removal was brought up during the selection interview shows that it was
a factor in the selection decision.
The record reveals that on August 8, 1995, complainant was orally
informed that he was being removed from his position as Associate Regional
Administrator, Division of Medicaid and was being detailed to unclassified
duties in the Office of Regional Administrator. In a September 11,
1995 memorandum, the Regional Administrator provided written notice of
complainant's detail and stated that the primary reason for the detail
was complainant's failure to follow instructions. In addition, in the
memorandum the Regional Administrator called complainant �insubordinate�
and said he no longer had confidence in complainant's ability to carry
out the duties of ARA. The record shows that complainant continued to
receive the same salary as before the detail but had no assigned duties.
In his formal complaint, complainant requested as relief (1) $125,000 for
pain and suffering, (2) an Intergovernmental Personnel Assignment (IPA)
or restoration to the ARA position, and (3) a letter of commendation.
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.
Upon review of the record, we find that the agency improperly dismissed
complainant's complaint for mootness. While the agency correctly
stated that compensatory damages are unavailable for discrimination or
retaliation claims under the ADEA, we find that interim events have
not completely and irrevocably eradicated the effects of the alleged
discrimination. Falks v. Department of the Treasury, EEOC Request
No. 05960250 (September 5, 1996). If complainant were to prevail on
his complaint, he would be entitled to the expungement of the detail from
all records. Therefore, we find that the subject complaint has not been
rendered moot by the completion of the detail assignment. Accordingly,
the agency's decision to dismiss complainant's complaint is REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with the Order below.
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
(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
December 28, 2000
__________________
Date