01A43444_r
11-15-2004
Linwood H. Gordon, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Linwood H. Gordon v. Department of the Army
01A43444
November 15, 2004
.
Linwood H. Gordon,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A43444
Agency No. ARJAPAN04JAN0001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 24, 2004, dismissing his complaint of unlawful
employment discrimination. In the decision, the agency defined the
complaint as alleging:
[Complainant] alleged discrimination on the basis of [his] race
(African-American) when on or about January 6, 2004, [complainant]
was subjected to a hostile working environment and reprisal by [his]
immediate supervisor. [Complainant] cited the following (alleged)
harassing incidents by [his] supervisor in support of [his] claim:
Demanding unreasonable performance standards and supervisory duties that
are not a part of [complainant's] job description.
That [complainant] [was] singled out for ridicule and censure in public
venues such as meetings.
That an organizational realignment created fear and a conflict of interest
for [complainant] in that complainant was subjected to retaliation from
[his] supervisor for doing [his] job (of monitoring security violations).
That [complainant's] supervisor retaliated against [complainant] because
complainant consulted with the civilian personnel center regarding [his]
official job standard and duties on or approximately December 24, 2003.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(5),
as moot. Specifically, the agency stated that complainant's duty section
has been re-positioned under the Deputy G-2 and that complainant is
no longer supervised under the Chief of the Intelligence Division.
Additionally, the agency reported complainant's job standards and
duties were mutually accepted between complainant and his new immediate
supervisor in a Senior System Civilian Evaluation Report Support Form,
which was signed on February 20, 2004.
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.
The Commission finds that the agency erred in dismissing complainant's
complaint as moot. The Commission finds that the complaint is more
properly viewed as one complaint of harassment on the basis of race and
harassment in part in retaliation for protesting the alleged racial
harassment. On appeal, complainant argues that merely changing the
supervisor authority of the Chief of the Intelligence Division over
complainant has not eradicated the hostility of complainant's workplace.
Complainant reported that the Chief of the Intelligence Division still
works in the same location as complainant and the two continue to be
required to work together. Moreover, complainant states that since
he sought EEO Counseling in January 2004, he has been threatened with
disciplinary actions and warning memorandums by his supervisors, which has
been made the subject of a subsequent EEO complaint. Complainant argues
that he received a memo entitled �Reservation of Authority for Civilian
Misconduct� on April 14, 2004; a �Memorandum of Warning� on April 15,
2004, as alleging misconduct; and a memorandum concerning a �Possible
Conflict Between Obligations as Special Security Officer/U.S. Government
Employee and that of a Minister and/or Ministry Counselor� dated May 17,
2004. Complainant argues that these memorandums continue to propagate
hostility in complainant's workplace and protract the harassment suffered
by complainant. The agency has not disputed complainant's arguments.
The Commission can not find that the effects of the alleged discrimination
have been eradicated or that the alleged harassment will not recur.
Therefore, the agency's dismissal of the complaint as moot was improper.
The agency also dismissed claim 4 on the alternative grounds of failure
to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency
found that complainant had not alleged that the incident in claim 4 was
motivated by prior protected activity and thus there was no proper basis
in claim 4. The Commission finds that complainant is claiming that some
of the harassment in the complaint was in retaliation for his complaining
about his supervisor's alleged discriminatory actions. Therefore, we
find that complainant has stated a valid basis of retaliation in his
harassment complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and we REMAND the complaint, as redefined in
this decision to be one claim of harassment, to the agency for further
processing pursuant to the Order herein.
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 (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 (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
November 15, 2004
__________________
Date