01985231
09-09-1999
James T. Volz, Appellant, v. Janet Reno, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
James T. Volz v. Department of Justice
01985231
September 9, 1999
James T. Volz, )
Appellant, )
) Appeal No. 01985231
v. ) Agency No. F964806
) F964808
Janet Reno, ) F964857
Attorney General, )
Department of Justice )
(Federal Bureau of )
Investigation), )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaints 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. The FAD was dated July 23, 1998.
The appeal was postmarked on June 12, 1998. Accordingly, the timely<1>
appeal is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaints as moot.
BACKGROUND
Appellant filed a formal complaint, agency no. F964806, on April 1, 1996
alleging discrimination on the basis of retaliation (prior EEO activity)
when, on September 18, 1995, he was advised by his supervisor that
his night differential pay previously posted in the time and attendance
database was being rescinded. As relief, complainant requested monetary
reimbursement, compensatory damages, attorney's fees and also requested
that disciplinary action be taken against the responsible management
officials.
On January 17, 1997, the agency dismissed appellant's complaint, agency
no. F964806, for failure to state a claim for which relief could be
granted because appellant was paid for the hours of night differential
pay that he was told were being rescinded. The appellant appealed the
decision to the Commission. The Commission then issued a decision, Volz
v. Department of Justice, EEOC Request No. 01972800 (December 10, 1997),
in which it reversed the agency's FAD and remanded appellant's complaint,
agency no. F964806, to the agency for further processing. We reversed
the agency's decision because we found that appellant's complaint did,
in fact, state a claim. In February 1998, appellant moved to consolidate
complaint no. F-96-4806 with two other complaints of his, which were
already pending before an Administrative Judge. These other complaints
were agency nos. F-96-4808 and F-96-4857. In an Order dated March 11,
1998, the AJ ordered consolidation of appellant's three complaints.
On May 5, 1998, a second AJ notified the parties that appellant's three
complaints had been reassigned to her. In her May 5, 1998, Notice and
Order, the second AJ told both parties that she was going to advise
the parties on full relief under the Commission's decision in Poirrier
v. Department of Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994).
She asked both parties to submit proposals for what would constitute
full relief. Both parties responded. The agency stated that since
it was not disputed that appellant eventually received $6.32 in night
differential pay two weeks after he believed he should have been paid,
the amount at issue concerned two weeks of interest on that money, or
just over two cents. The agency offered the following as full relief: 1)
$.02 in lost earnings; and 2) $.06 in compensatory damages. The agency
also offered to reimburse complainant for reasonable and proportionate
attorney's fees, not to exceed one hour, after complainant proffered the
proper documentation. Appellant did not provide the AJ with a proposal
of what he viewed as full relief, nor any explanation of why he should
be awarded compensatory damages. She, then, remanded the case, on May
29, 1998, to the Complaint Adjudication Office for dismissal as moot
because the agency made a unilateral, unconditional Poirrier offer of
full relief to the appellant.
Appellant then appealed the AJ's recommended decision to the Commission
on June 12, 1998. Appellant objected to the AJ's decision, asserting
that the AJ's decision that the case was moot meant that he was not able
to present evidence of retaliatory actions by the agency which occurred
after the AJ made her decision.
The agency's FAD, dated July 23, 1998, affirmed the AJ's decision
regarding: 1) payment of two cents interest to appellant; 2) promise by
the agency that it would not retaliate against appellant in the future;
and 3) denial of any additional compensatory damages. The FAD modified
the AJ's decision with respect to attorney's fees, awarding complainant
reasonable attorney's fees and costs for one hour. With that, the FAD
decided that the totality of the record supported the AJ's request to
dismiss the case as moot because the agency had made a Poirrier offer
of full relief. The FAD directed the agency to advise the Department
of Justice, Complaint Adjudication Office, within 90 days, of the steps
taken to implement full relief.
ANALYSIS AND FINDINGS
An EEOC AJ, prior to the hearing, may advise the parties as to the full
and complete remedy to which a complainant would be entitled should there
be a finding of discrimination. See 29 C.F.R. �1614.501. At that point,
the agency may agree to give complainant the full and complete remedy
defined by the AJ without further processing of the case. To do so,
the agency unilaterally and unconditionally must promise, in writing,
to provide the complainant with the full and complete remedy defined
by the AJ. If the agency does so, the AJ may then remand the case to
the agency to dismiss as moot. If the agency later fails to provide
the complainant with the full and complete remedy as promised, the
complainant may file an appeal with the Office of Federal Operations.
Poirrier v. Department of Veterans Affairs, EEOC Request No. 01933308
(May 5, 1994).
We agree with the agency that appellant's case is moot. Under Poirrier,
the agency unilaterally and unconditionally promised, in writing,
to provide the complainant with full and complete relief as defined by
the AJ. The AJ then correctly remanded the case to the agency to dismiss
as moot, which it did. The AJ was following Commission precedent by
employing this procedure. Appellant's appeal is apparently based on
the fact that he disagrees with the AJ. We find, however, that the
AJ's decision was correct. With regard to the incidents of retaliation
that appellant alleges occurred while his case was in front of the AJ,
we advise him to seek EEO Counseling.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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 (S0993)
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. 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:
September 9, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We note that appellant filed his appeal prematurely. Since the agency
has issued a FAD, however, we will accept appellant's appeal as timely
filed.