Peter D. O'Connor, Appellant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionMar 19, 1999
01982333 (E.E.O.C. Mar. 19, 1999)

01982333

03-19-1999

Peter D. O'Connor, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.


Peter D. O'Connor v. Federal Deposit Insurance Corporation

01982333

March 19, 1999

Peter D. O'Connor, )

Appellant, )

) Appeal No. 01982333

v. ) Agency No. 96-43

)

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance )

Corporation, )

Agency. )

)

DECISION

On February 6, 1998, appellant filed a timely appeal with this Commission

from a January 7, 1998 final agency decision which dismissed his complaint

pursuant to 29 C.F.R. �1614.107(a) for failure to state a claim and

pursuant to 29 C.F.R. �1614.107(e) on the grounds that it concerned a

proposed personnel action.

In his June 20, 1996 complaint, appellant alleged that he was

discriminated against on the bases of sex (male) and in reprisal

when he was subjected to harassment: (1) on May 3, 1996, when he was

notified that his temporary appointment would be terminated based on

poor performance, effective May 17, 1996; and (2) on May 21, 1996, the

Division of Deposition and Asset Services (DAS) personnel rescinded its

offer to place him in the Budget Specialist, grade 9 position, posted

under vacancy announcement DAS-B108. In dismissing the allegations,

the agency stated in its final decision that appellant was not aggrieved

because both of the alleged discriminatory actions were rescinded by the

DAS Deputy Director and that appellant was subsequently selected and

placed in the Budget Specialist position. The agency also noted that

the allegations did not constitute harassment because the incidents were

not severe and were isolated events.

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal

of a complaint which fails to state a claim within the meaning of 29

C.F.R. �1614.103. An agency shall accept a complaint from any aggrieved

employee who believes that he or she has been discriminated against

by that agency because of race, color, religion, sex, national origin,

age or a disabling condition. See 29 C.F.R. �1614.103; �1614.106(a).

The Commission's Federal sector case precedent has long defined an

"aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

The agency dismissed allegation 2 for failure to state a claim because

the alleged harm, i.e., rescission of a job offer accepted by appellant,

was remedied when the agency revoked the rescission and appellant was

placed in the position. The rescission of a job offer which appellant

accepted clearly affects a term, condition or privilege of employment and,

accordingly, states a claim. Although the agency dismissed allegation

2 for failure to state a claim, what the agency is in effect arguing is

that the allegation is moot, i.e., that because the agency reversed its

action and appellant was placed in the disputed position, appellant was

made whole and, as such, is no longer aggrieved.

EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of

a complaint, or portions thereof, when the issues raised therein are

moot. To determine whether the issues raised in appellant's 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 revocation of the rescission of the job offer and appellant's

placement in the position does not necessarily mean that an injury no

longer exists and that appellant was made whole. Appellant remains

aggrieved where, as here, other relief is possible. Here, appellant's

complaint reflects that he requested an "award of money damages for

the harm caused" him by the agency's alleged discriminatory actions.

Appellant also alleged that the agency's actions caused him to suffer

emotional distress and humiliation. Since appellant has made a claim

for compensatory damages, the dismissed allegation is not moot because

the effects of the alleged discrimination may not have been completely

eradicated. See Estafania v. Small Business Administration, EEOC Appeal

No. 01940838 (April 18, 1994). The agency, therefore, should have

requested that appellant provide some objective proof of the alleged

damages incurred, as well as objective evidence linking those damages to

the adverse actions at issue. See Benton v. Department of Defense, EEOC

Appeal No. 01932422 (December 10, 1993); Jackson v. U.S. Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,

EEOC Request No. 05930306 (February 1, 1993).

Consistent with the foregoing discussion, we therefore find that

allegation 2 was improperly dismissed.

The agency dismissed allegation 1 pursuant to 29 C.F.R. �1614.107(e) on

the grounds that the alleged discriminatory action involved a proposed

personnel action and therefore failed to state a claim.

EEOC Regulation 29 C.F.R. �1614.107(e) requires an agency to dismiss a

complaint or a portion of a complaint that alleges that a proposal to

take a personnel action, or other preliminary step to taking a personnel

action, is discriminatory. The Commission has held that proposed actions

do not create a direct and personal deprivation which would make the

appellant an "aggrieved" employee within the meaning of EEOC Regulations.

See Charles v. Department of the Treasury, EEOC Request No. 05910190

(February 25, 1991); Lewis v. Department of the Interior, EEOC Request

No. 05900095 (February 6, 1990).

Regarding allegation 1, the record reveals that appellant is alleging that

the proposed agency action to terminate him was taken to harass him. The

record contains a May 3, 1996 notice of proposed termination. Because the

complainant alleges that the preliminary step was taken for the purpose

of harassing the complainant for a prohibited reason, the agency may

not dismiss the allegation as preliminary because, allegedly, the matter

already has adversely affected the complainant. See Section-by-Section

Analysis, 57 Fed. Reg. 12643 (1992); Henry v. U.S. Postal Service, EEOC

Request No. 05950229 (November 22, 1995); EEOC Management Directive 110

(MD-110) (October 22, 1992), at 4-7, note 2.

The agency stated in its final decision that the two alleged

discriminatory incidents do not state a claim of harassment because the

incidents were not severe and were isolated events. In Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the

holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that

harassment is actionable if it is sufficiently severe or pervasive to

alter the conditions of the complainant's employment. The Court explained

that an "objectively hostile or abusive work environment" is created

when "a reasonable person would find [it] hostile or abusive" and the

complainant subjectively perceives it as such. Harris, supra at 21-22.

Thus, not all claims of harassment are actionable. Where a complaint

does not challenge an agency action or inaction regarding a specific term,

condition, or privilege of employment, a claim of harassment is actionable

only if, allegedly, the harassment to which the complainant has been

subjected was sufficiently severe or pervasive to alter the conditions of

the complainant's employment. The trier of fact must consider all of the

alleged harassing incidents and remarks, and considering them together

in the light most favorable to the complainant, determine whether they

are sufficient to state a claim. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

In the present case, appellant asserts that the two incidents which are

the subject of the present complaint are part of a pattern of harassment

to which he has been subjected by the agency. We find that when viewed

together and considering their close temporal proximity, as well as the

severity of the actions in question, i.e., a proposed removal and the

rescission of a job offer, appellant's allegations do state a processable

claim of harassment.

Consistent with the foregoing, the agency's dismissal of allegations

1 and 2 is REVERSED and the complaint is REMANDED to the agency for

further processing.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

March 19, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations