Gregory J. Klaes, Complainant,v.Robert M. Gates, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionFeb 15, 2007
0120062731 (E.E.O.C. Feb. 15, 2007)

0120062731

02-15-2007

Gregory J. Klaes, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.


Gregory J. Klaes,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

Agency.

Appeal No. 01200627311

Agency No. EU-FY05-23

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 22, 2006, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In the instant complaint, filed on November 28, 2005, complainant claimed

that he was subjected to discrimination on the bases of sex, religion,

disability, age, and in reprisal for prior EEO activity when:

1. on May 15, 2003, complainant, a classroom Science teacher at Lakenheath

Middle School, was denied a compassionate transfer to the position of

Dormitory Counselor at the London Central Dorm High School;

2. since May 2003 (when he was denied the transfer) until present,

he has been subjected to harassment based on the following incidents:

a. on a number of occasions, the Principal referred to him as not being

a team player and doing "end runs" to accomplish well defined goals;

b. he was assigned to four different teams in four different buildings at

different grade levels, with different textbooks in the last four years,

and no other faculty member has had to do the same;

c. the Principal has attempted to interfere with his contact with

newspaper reporters or colleagues over topics such as evolution,

cancellation of school field trips, stopping the grouping of students by

ability and his desire to emphasize grades and a number of other sundry

subjects; and

d. the Principal was unable to recognize his physical (tinnitus) and

mental (stress) disabilities, and make reasonable accommodations.

As a remedy, complainant requested to be transferred to London Central

Dorm High School and that a special position be created for him at the

high school; that the agency stop harassment; and provide him reasonable

accommodation "to relieve the stress that I am under."

In its February 22, 2006 final decision, the agency dismissed claim 1

for raising the same claim that is pending before or has been decided

by the agency or the Commission, pursuant to 29 C.F.R. � 1617.107(a)(1).

Specifically, the agency stated that complainant raised the same claim in

a prior EEO complaint identified as Agency No. EU-FY04-04. The agency

further noted that complainant appealed his prior EEO complaint which

was dismissed on the grounds of untimely EEO Counselor contact, pursuant

to 29 C.F.R. � 1614.107(a)(2); and that the Commission affirmed its

dismissal of the claim on February 17, 2005.

Furthermore, the agency dismissed the instant complaint as being moot

pursuant to 29 C.F.R. � 1614.107(a)(5). Specifically, the agency

explained that on May 18, 2005, the Chief, Human Resources sent

complainant a memorandum approving his request for continuation in

the Compassionate Program. The agency further concluded that because

complainant's claim that he was denied a compassionate transfer had been

approved, his complaint was rendered moot.

The record in this case contains a memorandum from an agency Chief,

Human Resources, dated May 18, 2005. Therein, the Chief, Human

Resources informed complainant that his request for continuation in

the Compassionate Reassignment Program had been approved, and that the

agency would continue to keep complainant enrolled in the program for an

additional year. The Chief, Human Resources stated that if complainant

is not matched with the next year, he would be required to submit an

update to his application on an annual basis, and that the next update

was due on May 18, 2006.

On appeal, complainant argues that the agency "would have the [Commission]

believe that my claim and therefore my request for consolidation with

the referenced case in paragraph above should be dismissed due to my

completely separate request to be considered for the compassionate

transfer program being granted [emphasis added]." Complainant further

argues that the Commission "should be aware that the compassionate

transfer program and my denial of a job in the dormitory at London Central

High School are different." Complainant states that as a corrective

action: "I am seeking an immediate transfer to the dormitory at London

Central High School should be granted."

Claim 1

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission.

The Commission finds that with regard to claim 1, complainant raises the

same claim as set forth in Agency No. EU-FY04-04, that is, that he was

discriminated against on the bases of sex, disability and age when on

May 15, 2003, a Personnel Advisor, DoDDS-E did not approve his request

for a compassionate transfer because of his disability and in retaliation

for filing a medical compensation form. Therefore, the agency properly

dismissed claim 1 for stating the same claim.2

Claim 2

The Commission determines that this claim has not been rendered moot.

EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the agency

shall dismiss a claim that is moot. To determine whether the issues

raised in a complaint remain in dispute, it must be ascertained (1) if

it can be said with assurance that there is no reasonable expectation

that the alleged violation will recur, and (2) if the 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). When such circumstances exist, no relief is available and no

need for a determined of the rights of the parties is presented.

We note although complainant did not request compensatory damages in

resolution of this matter, claim 2 has still not been rendered moot.3

Claim 2, as identified by the agency is comprised of alleged incidents of

discriminatory harassment, as identified in four incidents (2(a) - (d)).

Moreover, a fair reading of the entire record, including complainant's

arguments on appeal, reflects that complainant asserts that the harassment

has not ceased. Given these circumstances, the Commission determines

that the two-pronged County of Los Angeles v. Davis test has not been

met with regard to this claim.

Accordingly, the agency's dismissal of claim 1 is AFFIRMED. The agency's

dismissal of claim 2 is REVERSED. Claim 2 is REMANDED to the agency

for further processing in accordance with the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claim (claim 2) in

accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to

the complainant that it has received the remanded claim 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 (K0501)

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) (1994 & Supp. IV 1999).

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 (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 (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

February 15, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 On appeal, the Commission affirmed the agency's dismissal of the claim

regarding a May 15, 2003 denial of a compassionate transfer in Agency

No. EU-FY04-04. Klaes v. Department of Defense, EEOC Appeal No. 01A43751

(February 17, 2005).

3 The record reflects that on appeal, complainant stated "I would also

like to remind the EEOC and [EEO Counselor] at the EEO here in Europe

that I am not suing for any money...My only request is that I be moved

to London Central Dormitory so I can be near the medical providers for

both my wife and myself."

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0120062731

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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