Linwood H. Gordon, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 15, 2004
01A43444_r (E.E.O.C. Nov. 15, 2004)

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