01a43492
09-17-2004
Bobby L. Jones, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Bobby L. Jones v. Department of the Army
01A43492
September 17, 2004
.
Bobby L. Jones,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A43492
Agency No. ARREDRIV02SEP34
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 7, 2004, 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 formal complaint dated December 9, 2002, complainant alleged that
he was subjected to discrimination on the basis of age when his Standard
On-Line Applicant Response System (SOARS) account did not indicate the
final status of his applications; that several job announcements had a
status of being forwarded to the selecting official on his SOARS account;
and that his job application may not be referred to the actual selecting
supervisor, and if referred, he would not be selected.
Despite the above referenced description of the instant complaint,
however, the record reveals that on February 10, 2004, a preliminary
meeting for a fact-finding conference was held regarding complainant's
complaint. During this meeting, the agency sought clarification
regarding complainant's claims. The record further reveals that during
the February 10, 2004 meeting, complainant stated that his claim was
not his non-selection and/or non-referral, but rather, his claim was
that he was not given the status of his resume(s) by Civilian Personnel
Operations Center (CPOC)/Civilian Personnel Advisory Center (CPAC).
In its February 25, 2004 final decision, the agency dismissed
complainant's complaint as moot pursuant to 29 C.F.R. � 1614.107(a)(5),
after finding that complainant was provided the status for the 26
positions he applied for.
The agency also dismissed the complaint on alternative grounds of failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), finding that
complainant failed to present sufficient information to articulate
a claim.
On appeal, complainant, through his attorney contends that the
matter raised in the instant complaint was indeed complainant's
non-selections/non-referrals for agency positions, and not merely that
the agency did not provide complainant with the status of his resumes.
Regarding the February 10, 2004 meeting referenced above, wherein the
agency determined that complainant clarified his claim, complainant's
attorney argues that the agency �overreached, and overwhelmed�
complainant; and that the February 10, 2004 meeting where the claim was
re-defined constituted an improper waiver of complainant's ADEA claim,
in violation of the Older Workers' Benefits Protection Act (OWBPA).
As noted above, the record contains a copy of a statement dated February
10, 2004, and signed by complainant clarifying the claims he raised in
the instant complaint. Therein, complainant stated that his complaint
consists solely of the fact he was not given the status of his resumes by
CPOC/CPAC. Contrary to the argument of complainant's attorney on appeal,
the Commission finds that complainant's claim in the instant complaint
is in regard to not being provided a status of his resumes. Moreover,
we note that the record does not support a determination that complainant
was coerced by the agency to sign a February 10, 2004 statement clarifying
his claims of discrimination. Additionally, the Commission is unpersuaded
by complainant's contention that the agency violated the OWBPA, through
an improper waiver of an ADEA claim. As this case appears to involve
a clarification of the claim being pursued and not a waiver of an ADEA
claim, the OWBPA is not applicable in the instant case.
Regarding the claim as identified in the February 10, 2004 meeting
(complainant not provided with the status of his resumes), the Commission
notes that by his own admission on appeal, complainant was provided
a status of his resumes. Complainant has presented no evidence to
show that there is a reasonable expectation that the alleged violation
will recur. Interim relief or events have completely and irrevocably
eradicated the effects of the alleged violations. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). Moreover, under the ADEA,
compensatory damages is not an available remedy. See Taylor v. Department
of the Army, EEOC Request No. 05930633 (January 14, 1994), Therefore,
the complainant is not entitled to compensatory damages for the alleged
discriminatory event to which he was he was subjected.
Accordingly, the agency's decision to dismiss the instant complaint
pursuant to 29 C.F.R. � 1614.107(a)(5) is AFFIRMED.
Because we affirm the agency's dismissal of the instant complaint on
the grounds of mootness, we find it unnecessary to address alternative
dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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
September 17, 2004
__________________
Date