01974347
06-24-1999
Barbara Groshans, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency
Barbara Groshans, )
Appellant, )
) Appeal No. 01974347
v. ) Agency Nos. 94-00030-003;
) 95-00030-001
Richard J. Danzig, ) Hearing Nos. 100-95-7641X;
Secretary, ) 100-96-7069X
Department of the Navy, )
Agency )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female), reprisal (prior
EEO activity), and physical disability (anaphylaxis), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The issue on appeal is whether the agency's FAD properly affirmed
the Recommended Decision (RD) of the EEOC Administrative Judge (AJ)
to dismiss appellant's two complaints on the grounds that they were
previously appealed to the Merit Systems Protection Board (MSPB), and/or
were moot, pursuant to 29 C.F.R. � 1614.107(a), (d) and (e).
The record reveals that appellant, a GM-13 Contract Specialist with the
agency's Office of Strategic Systems in Arlington, Virginia, was informed
on June 16, 1994, that her removal from federal service had been proposed
based on her physical inability to perform the duties of her position.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed formal complaints on July 14, and
November 13, 1994.<1> At the conclusion of the investigation, appellant
was provided a copy of the investigative report and requested a hearing
before an EEOC AJ. Pursuant to 29 C.F.R. � 1614.107(a), (d) and (e), the
AJ issued an RD without a hearing, dismissing appellant's two complaints.
The AJ noted that after appellant was terminated, she filed an appeal of
her removal with the MSPB, and, on October 19, 1994, a MSPB AJ found that
appellant was not a person with a disability, she had not demonstrated a
prima facie case of sex discrimination, and that while she established a
prima facie case of reprisal discrimination, she failed to show that she
was subjected to adverse actions for engaging in protected activities.
The full MSPB affirmed the findings of the MSPB AJ. Appellant filed a
timely petition to review the MSPB's decision with the EEOC, and the EEOC
sustained the MSPB's findings that appellant was not discriminated against
on the bases of disability, sex or reprisal when she was dismissed.
Groshans v. Department of the Navy, EEOC Petition No. 03950109 (February
1, 1996).
Subsequently, the EEOC AJ noted that as appellant had been removed
from federal service and appealed the matter to the MSPB, an initial
determination was necessary on the issue of which issues had not been
subsumed by the MSPB appeal and could be decided by the EEOC AJ. The AJ
found that, based on the holding of the Commission in Aho v. Department
of Agriculture, EEOC Request No. 05860085 (May 22, 1987), as appellant's
allegations of discrimination based on disability, sex and reprisal
were fully adjudicated by the MSPB or by petition to the Commission,
the issues contained in appellant's initial complaint were dismissed.
In addition, the AJ found that appellant's second complaint regarding
reprisal by the agency was rendered moot in light of the MSRP's decision
to uphold appellant's removal. As such, the AJ also dismissed appellant's
second complaint. The FAD then adopted the findings of the AJ's RD.
Neither party has made contentions on appeal.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We find that regarding appellant's
initial complaint, the final decision of the MSPB is sufficient to render
the issue of her termination due to allegations of disability, sex, and
reprisal discrimination resolved. Fisher v. Department of Defense, EEOC
Request No. 05950153 (August 15, 1996). In addition, EEOC Regulation
29 C.F.R. � 1614.107(e) provides for the dismissal of a complaint, or
portions thereof, when the issue raised therein has become moot, that
is, where there is no reasonable expectation that the alleged violation
will recur, and interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los Angeles
v. Davis, 440 U.S. 625 (1979). With regard to appellant's allegation that
her supervisor refused to submit her request for training in reprisal
for her EEO activity, we agree with the AJ that appellant's termination
has intervened and eliminated the effects of the alleged discrimination,
thus, it was properly dismissed as moot. 29 C.F.R. � 1614.107(e). We,
therefore, discern no basis to disturb the AJ's dismissal of appellant's
two complaints in light of the decisions of the MSBP and the Commission.
Accordingly, after a careful review of the record and arguments and
evidence not discussed in this decision, the Commission AFFIRMS the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 (S0993)
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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The record reflects that effective September 13, 1994, appellant
was terminated.