01a44526
11-16-2004
Michael J. Smith, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Michael J. Smith v. Department of Defense
01A44526
November 16, 2004
.
Michael J. Smith,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A44526
Agency No. 04WHS008
DECISION
On February 26, 2004, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of race
(Caucasian), color (white), sex (male), religion (Catholic), national
origin (North American), and age (46) when he was not selected for
the positions of Program Analyst, NH-343-IV, Vacancy Announcement
WHS-03-7356-TG and Program Analyst, NH-343-IV, Vacancy Announcement
WHS-03-7780-BT.
By decision dated June 22, 2004, the agency dismissed the complaint on
the grounds of mootness. The agency determined that on February 19,
2004, a Human Resources Specialist provided complainant with a detailed
explanation of the reasons he was not selected for the positions at issue.
The agency stated that complainant did not describe the actions or
practices that form the basis of his complaint or the corrective actions
he was seeking. According to the agency, its EEO Office requested in
letters dated February 26, 2004 and March 31, 2004 that complainant
clarify his complaint.
On appeal, complainant maintains that the agency did not provide him
with sufficient relief Complainant argues that he was not provided with
feedback that addresses his desire to be informed of his weaknesses.
In response, the agency asserts that complainant was provided with the
specific constructive feedback that he requested as a remedy. The agency
maintains that appropriate agency officials informed complainant why he
was not seriously considered and why he was ultimately not selected for
the subject positions. The agency argues that complainant's displeasure
at the content of the feedback does not preclude mootness. According to
the agency, the alleged violation cannot recur because the position
vacancies at issue have been filled. The agency further argues that its
provision of the requested feedback irrevocably eradicated the effects
of the nonselections.
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. Initially, we note that the agency's
determination that the instant complaint lacks clarity is not justified
in light of the fact that the complaint is clearly defined in both the
EEO Counselor's report and the agency's final action. The complaint
concerns complainant's nonselections for the position of Program
Analyst under two separate vacancy announcements. It can not be said
that providing complainant with information concerning his nonselection
and the selection process was sufficient to eradicate the effects of
the alleged discrimination. The relief provided by the agency did not
offer complainant the position at issue or a comparable position. We
find that the effects of the alleged violation were not eradicated,
and consequently complainant's complaint has not been rendered moot.
Accordingly, the agency's decision dismissing complainant's complaint
was improper pursuant to 29 C.F.R. � 1614.107(a)(5) and is REVERSED.
This complaint is hereby REMANDED for further processing pursuant to
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 (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 16, 2004
__________________
Date