01992352_r
07-18-2002
James E. Reed, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
James E. Reed v. Department of Veterans Affairs
01992352
July 18, 2002
.
James E. Reed,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01992352
Agency Nos. 96-2066, 98-0875
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 29, 1998, dismissing his two complaints of
unlawful employment discrimination.
Complainant filed a formal complaint in Agency Case No. 96-2066 alleging
that he was subjected to discrimination on the bases of sex, age,
disability, and in reprisal for prior EEO activity when:
Complainant was harassed on May 20, 1996, when he was issued a Performance
Improvement Plan (PIP); when he was issued an alleged altered position
description; on June 10, 1996, complainant was issued a letter regarding
the denial of a within-grade increase; and working conditions.
Complainant filed a formal complaint in Agency Case No. 98-0875 alleging
that he was subjected to discrimination on the bases of race, sex,
and in reprisal for prior EEO activity when:
Complainant was discriminated against regarding assignment of duties,
subjected to harassment on August 30, 1995, April 14, 1995, May 5, 1995,
November 13, 1995, and November 27, 1995, and subjected to a hostile
work environment since August 30, 1995; and
Complainant was given a Firm Choice Letter dated November 27, 1995.
The agency issued a decision dated December 29, 1998, dismissing Agency
Case No. 96-2066 pursuant to the regulation set forth at 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency noted that
this complaint was settled by virtue of a settlement agreement dated
June 3, 1997. The agency advised complainant that if he feels the
agency breached the settlement agreement, he could file a breach claim.
Additionally, the agency dismissed issue (1) in Agency Case No. 98-0875
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(7), for
failure to cooperate and dismissed issue (2) pursuant to 29 C.F.R. �
1614.107(a)(5), as being moot. With regard to issue (2), the agency
noted that complainant retired from the agency and stated that there is
no likelihood that the alleged incidents will recur. The agency also
stated that since the allegations relate to on-the-job working conditions,
there is no relief which he can be awarded.
Complainant appealed the agency's December 29, 1998 decision to the
Commission on January 29, 1999.
Following complainant's appeal to the Commission, the agency issued a
subsequent final decision dated June 10, 1999, rescinding its December 29,
1998 decision. The agency decision dismissed Agency Case Nos. 96-2066
and 98-0875. The agency dismissed the issues identified in Agency
Case No. 96-2066 for failure to state a claim. The agency stated that
although the personnel actions mentioned in complainant's complaint may
have been proposed, the record indicates that they were never executed.
The agency stated that there is no record of a PIP in complainant's
OPF, no performance appraisal rating of May 20, 1996, nor is there any
reference to an incident occurring on June 4, 1996. The agency noted
that complainant's OPF only contains a retirement/disability form that
is effective March 29, 1997, the yearly locality-based salary increase
forms, Thrift Savings Plan forms, other forms complainant signed when
he began his career with the agency, and a copy of his application for
employment. Thus, the agency dismissed complainant's complaint for
failure to state a claim. Additionally, the agency dismissed issue
(2) in Agency Case No. 98-0875 on the grounds of mootness. The agency
noted that complainant resigned from the agency on March 29, 1997, and
stated that there is no indication that a firm choice letter is part
of complainant's Official Personnel File (OPF). The agency claimed
that if the firm choice letter was part of his OPF at one time, it was
expunged as the result of a June 3, 1997 settlement agreement which
settled another complaint (Agency Case No. 98-0872). The agency noted
that its December 29, 1998 decision improperly addressed issue (1),
an issue the Commission previously decided.<1>
The record contains a December 4, 1998 memorandum entitled �Report of
Contact� signed by Person A with the agency's Office of Resolution
Management. The � Report of Contact� states that Person A reviewed
complainant's OPF and found only the signed Performance Appraisals dated
January 21, 1993, May 13, 1994, December 1, 1994, and May 23, 1995, on
the left side of his folder. The memorandum states that the right side
of complainant's OPF, contains the standard employment related data such
as an employment application, insurance coverage, and personnel actions.
Upon review, we find that the agency properly dismissed Agency Case
No. 96-2066 and Agency Case No. 98-0875. With regard to Agency Case
No. 96-2066, we find that although the agency dismissed this issue for
failure to state a claim, we find that the complaint is more properly
dismissed for being moot. The agency contends and complainant does not
dispute that his OPF does not contain the June 4, 1996 letter referenced
in complainant's complaint, a May 20, 1996 performance appraisal,
or a May 20, 1996 PIP. As relief for his complaint, complainant
requested clarification of the PIP. The agency notes that complainant
resigned from the agency on March 29, 1997. We find that since there
is no reasonable expectation that the alleged violation will recur and
since complainant has not alleged that the documents remain in his OPF,
the complaint was properly dismissed as moot. Similarly, we find that
the agency properly dismissed Agency Case No. 98-0875, for being moot.
As remedy for his complaint, complainant requests removal of the firm
choice letter, a letter of apology, and a letter of non-recurrence.
The agency argues and complainant does not dispute that the firm choice
letter is not maintained in his OPF. We find that interim relief has
eradicated the effects of the alleged discrimination and that it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur. Thus, we find the agency properly
dismissed Agency Case No. 98-0875, for being moot.
Accordingly, the agency's decision to dismiss complainant's complaints
is AFFIRMED.
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
July 18, 2002
__________________
Date
1The record reveals that the agency previously
issued a final decision in Agency Case No. 98-0875, dismissing the
two issues in that case. Complainant appealed this dismissal to the
Commission which issued a decision in EEOC Appeal No. 01973932 (January
23, 1998), affirming the dismissal of issue (1) and reversing the
dismissal of issue (2) and remanding this issue for further processing.
Complainant filed a request for reconsideration from this decision which
was denied in EEOC Request No. 05980396 (November 14, 2000).