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Division of Deposition and Asset Services (DAS) personnel rescinded its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because both of the alleged discriminatory actions were rescinded by the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