01A23477_r
01-30-2003
Richard B. DeLeon, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Richard B. DeLeon v. Department of the Air Force
01A23477
January 30, 2003
.
Richard B. DeLeon,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23477
Agency Nos. KJOU02007
KJOU02008
DECISION
Complainant filed a timely appeal with this Commission from two final
decisions, both dated May 7, 2002, dismissing the two captioned complaints
that alleged unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
The record reveals that during the relevant time, complainant was
employed as a Communications Computer Systems Specialist at the agency's
Air Intelligence Agency, Lackland AFB, Texas. Complainant sought EEO
counseling and subsequently filed the two instant formal complaints on
April 2, 2002 (Agency Nos. KJOU02007 and KJOU02008).
In Agency No. KJOU02007, complainant claimed that he was discriminated
against on the basis of disability when on October 6, 2000, he was
terminated as a result of security clearance revocation.
In Agency No. KJOU02008, complainant claimed that he was discriminated
against on the basis of disability when on February 26, 2002, he had not
received status on four applications for employment, and had to visit
the civilian personnel office for status; additionally, he was advised
of nonselection for two of the positions on the same date. As relief,
complainant requested �past pecuniary and non-pecuniary lost to be
determined at a later date.�
Regarding Agency No. KJOU02007, the agency dismissed it for failure to
state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1) . Regarding Agency
No. KJOU02008, the agency dismissed it without elaboration on the grounds
of mootness, pursuant to 29 C.F.R. � 1614.107(a)(5).
Agency No. KJOU02007
The Commission has held that it is precluded from reviewing the substance
of security clearance decisions, or the validity of the security
requirement itself. See Thierjung v. Department of Defense (Defense
Mapping Agency), EEOC Request No. 05880664 (November 2, 1989). In the
instant case, complainant claimed that he was removed from his position
after his security clearance was revoked because of his disability.
The Commission determines that the essence of the instant complaint is
not his removal from agency employment; rather it is the revocation of
a security clearance that precipitated his removal. Accordingly, we
find that the Commission lacks jurisdiction over the matter raised in
this complaint. The agency's dismissal of this complaint is therefore
AFFIRMED.
Agency No. KJOU02008
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, the Commission determines that dismissal of the instant
claim as moot was improper. This claim has not been rendered moot
because, at a minimum, complainant requested compensatory damages, as
reflected by a fair reading of his requested remedies. We have held
that an agency must address the issue of compensatory damages when the
complainant presented objective evidence that he incurred compensatory
damages and that the damages were related to the alleged discrimination.
See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992);
request to reopen denied, EEOC Request No. 05930386 (February 11, 1993).
Consequently, where, as here, a complainant requests compensatory damages
during the processing of a complaint, the agency is obliged to request
from the complainant objective evidence of such damages. In this case,
the agency did not request objective evidence of compensatory damages.
Should complainant prevail in his complaint, the possibility of an award
of compensatory damages exists, and complainant's claim is not moot.
See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
Accordingly, the agency's final decision dismissing Agency No. KJOU02007
for failure to state a claim is AFFIRMED. The agency's final decision
dismissing KJOU02008 as moot is REVERSED. Agency No. KJOU02008 is hereby
REMANDED to the agency for further processing in accordance with the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded complaint in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded complaint 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
January 30, 2003
__________________
Date