01984131_r
06-21-1999
Esther M. Selser, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Esther M. Selser, )
Appellant, )
)
v. ) Appeal No. 01984131
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On May 2, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on April 4, 1998,
pertaining to her 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. In her complaint, appellant alleged that she
was subjected to discrimination on the basis of sex (female) when:
On November 21, 1996, appellant learned that two officers involved in
the capture of a person who assaulted a co-worker received citations
and cash awards in July 1996, but appellant did not receive either
despite appellant's assistance in apprehending the suspect;
No action was taken when appellant and appellant's co-workers expressed
concern for appellant's safety;
Several weeks before a co-worker was attacked, her office was broken
into, but appellant did not learn about the break-in until three weeks
later when appellant spoke with a colleague. The attack occurred on June
26, 1996, but no changes in security were made following the incident;
During this time frame the locked doors leading to appellant's office
wing were removed and replaced by doors which could not be locked.
When the nursing instructors protested, they were told that the doors
could not be replaced. After appellant relocated to another area of
the hospital, the locked doors were replaced when another department
moved to that space. Appellant learned of this on December 1, 1996;
Within a week or two following the attack of appellant's co-worker,
a decision was made to relocate appellant to the building to which
the attacker would be admitted if he required hospitalization.
After appellant and her co-workers expressed their concerns, the Acting
Director canceled the scheduled move and initiated proceedings to have
the patient banned from future treatment at the facility;
Shortly thereafter, appellant learned of a plan to relocate appellant's
offices to building 2. Before this relocation was scheduled to occur,
the secretary became apprehensive when a man entered her office and
asked assistance to use the restroom. Appellant and her co-workers
protested security's lack of response. As a result, the decision was
made to relocate appellant to 4-4E. Engineering expressed surprise
at this move since this area was scheduled for major reconstruction.
Eventually, appellant was moved to another office space;
Even though one co-worker told appellant that her COP was authorized,
and that the initial and subsequent treatment would be covered, no one
in authority at the hospital has indicated to appellant that regardless
of the outcome of appellant's Workers' Compensation Claim, appellant
would not have to pay back COP from her banked leave as well as be
responsible for the charges generated with the co-worker's approval for
treatment from a therapist. When appellant checked on the status of her
case, and mentioned the possibility of inheriting a financial burden,
appellant was told that she would have to make a decision on what value
she placed on her health in regard to pursuing treatment as the trial
begins and appellant is re-exposed to the dangerous assailant; and
As a result of the continued treatment appellant received, appellant
has decided to resign rather than continue to subject herself to the
agency's unrelenting discriminatory treatment.
The agency dismissed allegation (1) pursuant to EEOC Regulation 29
C.F.R. �1614.107(e), for being moot. Specifically, the agency found
that appellant was notified by letter dated February 7, 1997, that she
was being given a commendation and monetary award for the part she
played in apprehending the individual that assaulted her co-worker.
The agency also dismissed allegation (7) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a) for failure to state a claim. The agency accepted
the remaining allegations.
On appeal, appellant clearly states that she does not wish to appeal the
dismissal of allegation (7). Accordingly, we will not address allegation
(7) further herein. Regarding allegation (1), appellant claims that the
agency's failure to award her actions at the same time as they recognized
the male officers was discrimination that is not remedied by her belated
receipt of a commendation and monetary award.
A review of the record reveals that appellant requested an award of
compensatory damages in her January 24, 1997 formal complaint.
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.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence
that she has incurred compensatory damages, and that the damages are
related to the alleged discrimination. Jackson v. USPS, EEOC Appeal
No. 01923399 (November 12, 1992), request to reopen denied, EEOC
Request No. 05930306 (February 1, 1993). Should appellant prevail
on this complaint, the possibility of an award of compensatory damages
exists. See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
Because appellant requested compensatory damages in her formal complaint,
the agency should have requested that appellant provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse actions at issue. See Benton
v. Department of Defense, EEOC Appeal No. 01932422 (December 10, 1993).
Therefore, we find that appellant still may be aggrieved as a result of
the matters raised in allegation (1).
CONCLUSION
Accordingly, the agency's decision to dismiss allegation (7) is AFFIRMED,
but the dismissal of allegation (1) is REVERSED and REMANDED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 21, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations