0120102318
08-24-2010
Jeffrey C. Gray, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Jeffrey C. Gray,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120102318
Agency No. FBI201000084
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 15, 2010, 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. Upon review, the Commission REVERSES the Final Agency Decision (FAD).
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (black) and in reprisal for prior protected activity when:
on January 20, 2010, his request for a travel related request (rental car) was denied by senior management.
BACKGROUND
In its decision, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(5) as moot and as a proposal to take a personnel action or preliminary step to taking a personnel action. The Agency also references the fact that Complainant's claim fails to state a claim. In this regard, the Agency noted that even though management initially denied Complainant's rental car request, the trial that Complainant was required to attend was later ultimately cancelled. As such, the Agency noted that Complainant no longer needed the rental car after he initially requested it.
On Appeal, Complainant contends that management never denied white coworkers their rental car requests. Complainant also noted that white coworkers were allowed rental cars even if their assignments were later cancelled.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(4) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issue raised in Complainant's complaint remains 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 determination of the rights of the parties is presented.
The Commission acknowledges that, as a result of the cancellation of the trial, Complainant no longer needed the rental car. However, we note that in his complaint, Complainant has requested damages for unwarranted scrutiny and mental aguish. We view Complainant's statement as a request for compensatory damages. The Commission has long held that an Agency must address the issue of compensatory damages when a Complainant presents objective evidence that he incurred compensatory damages and that the damages were related to the alleged discrimination. See Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992); request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993).
Consequently, where, as here, a Complainant requests compensatory damages during the processing of a complaint, the Agency is obliged to request from the Complainant objective evidence of such damages. In this case, the Agency did not request objective evidence of compensatory damages. Should Complainant prevail in his complaint, the possibility of an award of compensatory damages exists, and Complainant's claim would not be moot. See Glover v. United States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).
Lastly, we find that Complainant has adequately stated a claim by alleging that, because of his race and in reprisal for prior protected activity, the Agency did not allow him to rent a car, which in turn, showed that he was treated less favorably than similarly situated employees outside of his protected class. We therefore find that Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 1
Accordingly, we REVERSE the Agency's dismissal of Complainant's complaint, and we REMAND the Complaint to the Agency for further processing in accordance with the order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____8/24/10______________
Date
1 We also find that the Agency's act of denying Complainant's rental car does not qualify as a proposal to take a personnel action or preliminary step to taking a personnel action. In this regard, we find that the Agency has misinterpreted the application of 29 C.F.R. � 1614.107(a)(5) here since the act of the denial of the rental car is not a preliminary step or proposed action.
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0120102318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102318