05991048
06-04-2003
Eathelda M. Saunders, Complainant, v. Hansford T. Johnson Acting Secretary, Department of the Navy, Agency.
Eathelda M. Saunders v. Department of the Navy
05991048
06-04-03
.
Eathelda M. Saunders,
Complainant,
v.
Hansford T. Johnson
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05991048
Appeal No. 01983830
DECISION ON REQUEST FOR RECONSIDERATION
The Department of the Navy (hereinafter referred to as the agency) timely
initiated a request to the Equal Employment Opportunity Commission (the
Commission or EEOC) to reconsider the decision in Eathelda M. Saunders
v. Richard J. Danzig, Secretary, Department of the Navy, EEOC Appeal
No. 01983830 (July 20, 1999). EEOC regulations provide that the
Commissioners may, in their discretion, reconsider any previous decision
where the party demonstrates that: (1) the previous decision involved
a clearly erroneous interpretation of material fact or law; or (2) the
decision will have a substantial impact on the policies, practices or
operation of the agency. 29 C.F.R. �1614.405(b). For the reasons set
forth herein, the previous decision is vacated based on clarification
of the facts and a change in complainant's employment status.
The issue in this request is whether the previous decision's remand of
one issue to the agency for further processing is appropriate in light
of clarification of the facts and a change in complainant's employment
status.
Complainant worked as a Boiler Plant Operator in the Utilities Department
of the agency's Public Works Center until her removal effective June
6, 1998.<1> This matter concerns two complaints filed by complainant
in 1992 and 1996. On December 8, 1992, complainant filed Complaint
No. 93-00187-005, and, on August 10, 1993, the parties entered into a
settlement agreement (SA1) that provided, inter alia, for dismissal of
the complaint and training and assignment opportunities for complainant.
On December 22, 1996, an Addendum to SA1 between the parties established
more specific training opportunities.
On November 8, 1996, complainant filed Complaint No. 97-00187-009,
alleging discrimination based on race (black), sex, and reprisal with
regard to her non-selection for the position of Contract Surveillance
Representative. By its final agency decision (FAD) in December 1996,
the agency accepted the non-selection issue and dismissed as moot a
second issue concerning complainant's eligibility for the position.<2>
Complainant was provided notice of her right of appeal, including the time
limitations and the proper address for appeal, but no appeal was filed
with the Office of Federal Operations (OFO). The agency investigated the
accepted issue and, upon complainant's request, forwarded a request for
hearing to the Baltimore District Office. Prior to a hearing, however,
this matter was settled between the parties on January 16, 1998 (SA2),
and Complaint No. 97-00187-009 was dismissed by the agency.<3>
In April 1998, OFO received a letter that was forwarded from the Baltimore
District Office written by complainant.<4> Initially, OFO treated
the letter as an appeal from the FAD in Complaint No. 97-00187-009.
Subsequently, however, on June 19, 1998, in response to the agency's
request for clarification and a motion to dismiss the new appeal,
OFO advised the agency that the appeal was in reference to SA1 and not
concerning Complaint No. 97-00187-009. OFO stated that it would change
its records to identify and properly reference the correct complaint
number, i.e., No. 93-00187-005, but this was not done.
On July 20, 1999, OFO issued the previous decision herein with reference
to Complaint No. 97-00187-009 as the subject of the appeal. The previous
decision reversed and remanded the December 1996 FAD, which dismissed the
second issue of complainant's eligibility for the position. The decision
also noted that complainant's letter alleged a breach of SA1 but dismissed
that claim as a subsequent claim of harassment pursuant to 29 C.F.R. �
1614.504(c), which required a new EEO complaint. The previous decision
did not address whether the appeal was timely or complainant's failure
to properly send it to the correct address.
Upon further review of the record, we vacate the previous decision and
close this matter, because no relief is available to complainant in
light of her removal from federal service.
The Previous Decision
First, we find that the previous decision improperly addressed
complainant's letter as an appeal from the FAD in Complaint
No. 97-00187-009, because in her letter, complainant discussed issues
related to SA1, primarily complaining about training opportunities,
and the Commission had determined that Complaint No. 93-00187-005 was
the substance of her appeal. Further, the previous decision did not
consider the timeliness of her appeal or her failure to initially allege
a breach with the agency. Because complainant's appeal concerned SA1,
we vacate the previous decision's remand of Complaint No. 97-00187-009.
Complainant's Appeal Re: SA1
With regard to complainant's allegation of breach of SA1, we find that the
underlying complaint, Complaint No. 93-00187-005, is properly dismissed
as moot. EEOC Regulation 29 C.F.R. � 1614.107(e) allows for dismissal of
a complaint when the issue raised 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).
The record shows that Complaint No. 93-00187-005 was resolved by SA1 and
that complainant was removed from agency employment in June 1998. We find
that the resolution of Complaint No. 93-00187-005 by SA1 and complainant's
subsequent removal from federal employment constituted interim events
that completely eliminated the possibility that the discrimination
would recur. See County of Los Angeles v. Davis, supra; Smothers
v. Department of Defense, EEOC Request No. 05970081 (January 4, 1999);
Mahboob v. Department of the Navy, EEOC Request No. 05940294 (September
29, 1994). SA1 provided training opportunities for complainant, and her
appeal alleged a breach of that agreement, but a remedy is no longer
available to her. Although complainant claimed compensatory damages,
such damages are not available as a remedy upon a finding of breach.
Allen v. Department of the Interior, EEOC Request No. 05970352 (August
11, 1999); Kessler v. USPS, EEOC Request No. 05970446 (February 26,
1999); Martin v. Department of Defense, EEOC Request No. 05940745
(August 24, 1995). Our regulations are clear in this regard that the
only two remedies available for breach of a settlement agreement are
specific performance of the terms of the agreement and reinstatement of
the complaint at the point processing ceased. 29 C.F.R. � 1614.504(c).
Having found that no extant issue remains and no relief is available to
complainant due to her removal from federal service, the Commission finds
that the previous decision must be vacated and this matter closed.
For all of the above reasons, we vacate the previous decision as
described herein.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the decision in EEOC Appeal No. 01983830
(July 20, 1999) is VACATED, and the matter is closed. There is no
further right of administrative appeal on a decision of the Commission
on a Request for Reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 Hadden, Director
Office of Federal Operations
__06-04-03________
Date
1Complainant elected to challenge her removal
through the grievance procedure and not an EEO complaint, although she
had been informed that the Collective Bargaining Agreement specifically
excluded allegations of discrimination. At the third-step, she raised a
claim of mental disability; the agency denied her grievance. On July 9,
1998, the union notified the agency that it intended to arbitrate the
agency's third-step decision but withdrew its request for arbitration
on July 28, 1998. Meanwhile, on July 27, 1998, complainant appealed
her removal to the Merit Systems Protection Board (MSPB). On December
1, 1998, the MSPB Administrative Judge dismissed complainant's appeal
as untimely filed, finding that she failed to show good cause for her
untimely filing.
2The FAD found that complainant had been informed in error that she was
not eligible for the position. Subsequently, the initial posting was
canceled and the position was posted again. Complainant applied and
was among the eligible candidates considered for the position.
3We note that as of July 14, 1997, complainant had stopped working,
asserting that the environment in Utilities was inhospitable.
In addition, her doctor advised the agency that complainant had made
verbal threats to harm her supervisors and recommended that she remain
off work.
4Complainant's letter was addressed to the Office of Federal Operations
with the address of the Baltimore District Office. For the most part, the
letter addressed her concerns about implementation of SA1 and appended
a copy of the settlement documents. There is a brief mention of the
agency's December 1996 FAD on Complaint No. 97-00187-009.