Jerome R. Gray, Complainant,v.Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 6, 2001
01992915 (E.E.O.C. Feb. 6, 2001)

01992915

02-06-2001

Jerome R. Gray, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Jerome R. Gray v. Department of the Navy

01992915

February 6, 2001

.

Jerome R. Gray,

Complainant,

v.

Robert B. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01992915

Agency No. 98-00174-011

DECISION

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

decision dated January 27, 1999, 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. In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of race (African American), color (none identified), sex

(male), and in reprisal for prior EEO activity when:

On June 26, 1998, complainant was placed on a performance improvement

plan although he was still expected to conduct work at the lead operator

level;

On June 21, 1998, complainant's within grade increase was denied although

his level of performance increased;

In March 1998, complainant was directed to work as if he were fully

ready and able, although complainant was in a light duty status;

Complainant's first-level supervisor uses control devices to show

deficiencies in complainant's job performance, but not with similarly

situated White employees;

Management shows complainant no appreciation (awards) for extra effort,

unlike the White employees;

Complainant was severely penalized (adverse actions and lower performance

rating) for frivolous mistakes which are correctable, or held accountable

for mistakes which are not his fault, but White employees are not treated

this way;

Complainant's second-level supervisor treats him like �a servile ex-con

just released from prison� by the manner in which she speaks to him when

they have a disagreement about work related issues;

Complainant was not given opportunities to cross-train, unlike White

employees;

Complainant was not given opportunities to read and review film, unlike

White employees;

Complainant was not able to work in an office-setting nor able to work

different hours as a White female employee was allowed;

Complainant is no longer allowed to bring beverages or snacks into the

control room within the operating areas.<1>

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(5), on the grounds that it was moot.

The agency noted that subsequent to filing a formal EEO complaint,

complainant entered into an Arbitration Settlement Agreement which

resulted in his reinstatement to the agency and transfer to another

department. The agency stated that as a result of the settlement

agreement and complainant's transfer to a new department, complainant

would no longer interact nor be supervised by anyone in his previous chain

of command. Thus, the agency claimed that interim events eradicated the

effects of the alleged discrimination and argued there is no reasonable

expectation that such violations will recur.

On appeal, complainant argued that his complaint is not moot since he

is entitled to further relief through the EEO process. Specifically,

complainant stated that he requested compensatory damages as relief in

his formal complaint, and therefore argued that his complaint cannot be

dismissed as moot.

In response to complainant's appeal, the agency argues that due to

complainant's reassignment, there is no likelihood that the alleged

violation will recur. In addition, the agency claims that complainant

has been made whole by the reassignment and back pay obtained through

the pre-arbitration settlement agreement. Finally, the agency notes

complainant's failure to respond to

a request for objective evidence of compensatory damages in the Notice

of Partial Acceptance/Dismissal and argues that his non-response should

preclude his entitlement to compensatory damages.

The record shows that on September 21, 1998, complainant was removed

from his position as a GS-9 Engineering Technician with the agency's

Test and Evaluation Department, Code 30. Thereafter complainant filed

a grievance which resulted in a December 8, 1998 settlement agreement.

According to the terms of the settlement agreement, complainant was to be

reinstated and then transferred from the Test and Evaluation Department,

Code 30, to the agency's Ordinance Department, Code 20. The agreement

also provided that complainant would receive back pay following a 90-day

period free of �for cause� discipline.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for

the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in complainant'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); Kuo

v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).

When such circumstances exist, no relief is available and no need for

a determination of the rights of the parties is presented.

Upon review of the record we find that the agency improperly dismissed

complainant's complaint on the grounds that it was moot. We note

that although some of the effects of the alleged discrimination were

removed as a result of the arbitration settlement agreement, further

relief remains available to complainant through the EEO process.

For example, if complainant prevails on his claim that he received a low

performance appraisal, possible relief would include a revised appraisal.

In addition, in response to his claim that he was unjustly denied a within

grade increase on June 21, 1998, complaint could receive a retroactive

within grade increase. Furthermore, should complainant prevail on

his claim that he was denied appreciation awards, complainant could

receive those awards. Finally, we note that on his formal complaint,

complainant stated that he used sick and annual leave as a result of

the alleged discrimination; thus, another form of relief could include

restoration of that leave.

In addition, we note that in the Notice of Partial Acceptance/Dismissal

dated October 28, 1998, the agency informed complainant that he would

need to provide objective evidence of compensatory damages claimed and

the causal relationship between the alleged acts of discrimination and

the damages claimed. However, the agency did not inform complainant

that supporting evidence of compensatory damages was necessary to

determine whether complainant's complaint could be accepted. Also,

the request did not provide a time limit by which complainant had to

respond. Furthermore, we find that the agency's request for objective

evidence in support of his claim for compensatory damages failed

to provide complainant with sufficient information as to the type

of evidence necessary to prove damages and entitlement. Because of

the deficiencies in the agency's request for evidence of compensatory

damages, we find that complainant's failure to respond to the request

does not preclude him from obtaining compensatory damages. Therefore,

in light of complainant's claim for compensatory damages, the effects

of the alleged violations may not have been completely eradicated.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper and is REVERSED and the complaint is REMANDED for further

processing in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the 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 (K0900)

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)(Supp. V 1993). 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 (M0900)

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

(R0900)

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 (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 6, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Complainant's complaint originally identified seventeen issues.

On October 28, 1998, the agency issued a Notice of Partial

Acceptance/Dismissal accepting the eleven issues listed above.

Complainant did not appeal the dismissed portion of the complaint.