01A10170_r
04-05-2002
Joseph S. Mahaley, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Joseph S. Mahaley v. Department of Energy
01A10170
April 5, 2002
.
Joseph S. Mahaley,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A10170
Agency No. 0074HQSO
DECISION
Complainant initiated contact with an EEO Counselor on May 15, 2000.
On July 6, 2000, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his race
(Caucasian), sex (male), age (48), national origin (non Asian-American),
and in reprisal for when he spoke out on January 7, 2000, against the
Department Secretary's plan to only consider Asian-Americans for the
proposed Ombudsman position. The alleged discriminatory incidents are
that on February 5, 2000, complainant's nomination for a Fiscal Year 2000
Meritorious Presidential Rank Award Nomination was disapproved and on
April 13, 2000, complainant's recommended promotion to pay level ES-6
was disapproved, with final approval delayed until after the instant
complaint was filed. The record indicates that complainant seeks
compensatory damages for damage to his reputation.
In its decision dated September 12, 2000, the agency addressed the
alleged discriminatory incidents as two separate claims. The agency
dismissed the claim concerning the disapproval of the award nomination,
pursuant to 29 C.F.R. �1614.107(a)(2), on the grounds that complainant
failed to initiate contact with an EEO Counselor in a timely manner.
The agency determined that complainant's EEO contact of May 15, 2000,
was more than 45 days after the award nomination was disapproved.
The agency dismissed the claim concerning complainant's delayed promotion,
pursuant to 29 C.F.R. �1614.107(a)(5), on the grounds that the claim was
rendered moot when complainant was promoted on May 28, 2000. The agency
determined that complainant would not have received additional salary or
employment benefits had his promotion occurred in April 2000, because
the pay rate for senior executives in the federal government is frozen
at level III of the executive schedule. With regard to complainant's
request for compensatory damages, the agency
determined that an award of compensatory damages is not appropriate
because complainant's claim is speculative and lacking in objective
evidence.
On appeal, complainant claims that he did not realize that a retaliatory
campaign was being conducted against him until April 13, 2000, when his
promotion was denied.
With regard to the claim concerning complainant's disapproved award
nomination, we find that complainant should have reasonably suspected
discrimination when his nomination was disapproved in February 2000.
Therefore, we find that complainant's contact of an EEO Counselor on May
15, 2000, was not within the 45-day limitation period. Accordingly,
the agency's dismissal of this claim on the grounds of untimely EEO
contact was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that prior to a
request for a hearing, an agency shall dismiss an entire complaint when
the issues raised therein are moot. To determine whether the issues
raised in a complaint are moot, 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
violation. 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 agency determined that complainant's claim concerning his delayed
promotion is moot because he would not have received additional salary or
employment benefits had he been promoted in April 2000. The agency also
determined that complainant's request for compensatory was speculative
as complainant did not provide objective evidence to support his claim.
To establish a claim of compensatory damages, a complainant must provide
detailed evidence in support. Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993). In Carle, the Commission described
the type of objective evidence that may be considered when assessing the
merits of a request for damages bases on emotional distress, including,
e.g., (a) copies of receipts and/or bills for medical care medication, and
transportation to the doctor; (b) a statement by complainant describing
her emotional distress and statements from witnesses, both on and off
the job, describing the distress, including detailed information on
physical or behavioral manifestations of the distress, the intensity
of the distress, the duration of the distress, and examples of how the
distress affected complainant day to day, both on and off the job; (c)
objective and other evidence linking expenses, if any, and the distress
to the alleged unlawful discrimination; and (d) any other information
establishing the claim.
We observe that in a letter to complainant dated July 10, 2000, the agency
requested that complainant provide objective evidence linking the damages
to the alleged unlawful discrimination within thirty calendar days of
complainant's receipt of the letter. We find that the agency's request
for objective evidence in support of complainant's claim for compensatory
damages failed to provide complainant with sufficient information as to
the evidence necessary to prove damages and entitlement. The agency
should advise complainant that he should submit objective evidence such
as statements concerning his emotional pain or suffering, inconvenience,
mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character or reputation, injury to credit standing,
loss of health, and any other non-pecuniary losses that have been incurred
as a result of the alleged discriminatory conduct. It further should
advise him that he may submit statements from others, including family
members, friends, health care providers, other counselors addressing,
for example, the outward manifestations or physical consequences of
emotional distress. Objective evidence may include documents indicating
complainant's actual out-of-pocket expenses, if any, related to medical
treatment, counseling, and so forth, related to the injury allegedly
caused by discrimination. The agency should advise complainant that he
must establish a connection between the alleged discriminatory action and
the resulting injury. We further note that the agency also should inform
complainant that a request for compensatory damages related to emotional
pain and suffering may permit the agency to seek personal and sensitive
information from him in order to determine whether the injury is linked
solely, partially, or not at all to the alleged discriminatory conduct.
See Robert Broughton v. Department of the Navy, EEOC Appeal No. 01951999
(April 25, 1995). In light of complainant's claim for compensatory
damages, the effects of the alleged violation may not have been completely
eradicated. See Estafania v. Small Business Administration, EEOC Appeal
No. 01940838 (April 18, 1994). Accordingly, the agency's decision to
dismiss this claim on the grounds of mootness is REVERSED. This claim
is hereby REMANDED for further processing pursuant to the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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
April 5, 2002
__________________
Date