01a54904
12-29-2005
Richard Perfetti, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Richard Perfetti v. Department of the Army
01A54904
December 29, 2005
.
Richard Perfetti,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54904
Agency No. ARCEMEMPO506298
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 26, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
in reprisal for prior EEO activity when on December 2, 2004:
his supervisor allegedly promised him a monetary award for a job well
done, and complainant did not receive such award; and
his supervisor downgraded his performance evaluation to make complainant
ineligible for a monetary award.
The agency dismissed the instant complaint on the grounds of mootness.
Specifically, the agency found that on January 31, 2005, complainant
was paid a cash award of $200.00. The agency noted that complainant
argued that the award was a safety award which everyone in the company
received, not the award promised to him based on his job performance.
However, the agency found that complainant was also paid an Individual
Cash Award, which is paid to an employee based on his or her individual
contribution and/or performance.
Notwithstanding that complainant requested compensatory damages,
the agency dismissed the complaint as moot. The agency noted that it
requested evidence of compensatory damages and of a causal connection
prior to making a determination on the question of mootness. The agency
found that on March 12, 2005, the agency mailed a letter to complainant's
attorney requesting information on compensatory damages. The agency
alleged that complainant's attorney received it on March 15, 2005.
The agency also alleged that complainant's attorney responded to the
letter on April 4, 2005, but the response was vague; provided no causal
connection between the damages and the alleged injury; and was generally
insufficient. Based on complainant's response, the agency alleged that on
April 26, 2005, it requested complainant's attorney provide clarification
of information regarding compensatory damages. The agency further found
that complainant's attorney responded on May 16, 2005, with a letter,
which included the same language as set out in her original Memorandum.
The agency further dismissed claim (2) pursuant to 29 C.F.R. �
1614.107(a)(2) for raising a matter that had not been brought to the
attention of an EEO counselor. The agency noted that complainant did
not bring to the attention of the EEO Counselor his claim regarding his
performance evaluation, and it was not like or related to claim (1).
Specifically, the agency found that this claim should have been counseled
because it involves other evidence, including performance ratings of
other employees, documentation, and other witnesses.
On appeal, complainant contends that his complaint is not moot because he
has not been provided a remedy as a victim of reprisal discrimination.
Complainant contends that he received a safety award which everyone in
the company received, not the award promised to him based on his job
performance. Complainant further contends that the interim relief or
events have not completely and irrevocably eradicated the effects of
the discrimination against him, nor is there any certainty that this
type of discrimination will not recur in the future.
EEOC Regulation 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 an allegation is moot, the fact finder 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 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.
As to claim (1), we find the agency's dismissal on the grounds of
mootness to be improper. The record reveals that on January 31, 2005,
complainant received a cash award of $200.00; however. complainant
contends that this money was a safety award which everyone in the company
received, not the award promised to him based on his job performance.
The agency stated that complainant was paid an Individual Cash Award,
which is paid to an employee based on his or her individual contribution
and/or performance; however, the record does not contain any evidence
indicating what type of award complainant received. The agency has the
burden of providing evidence and/or proof to support its final decisions.
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993); Gens v. Department of Defense, EEOC Request No. 05910837 (January
31, 1992). Therefore, we find that the agency failed to support the
finding of mootness and the Commission remands this claim for further
processing.
As to claim (2), we find that the agency's dismissal for failure to
bring the matter to the attention of an EEO Counselor is improper.
EEOC Regulation 29 C.F.R. � 1614.107 (a)(2) provides that the agency may
dismiss a claim that raises a matter that has not been brought to the
attention of a Counselor and is not like or related to a matter that
has been brought to the attention of a Counselor. The record reveals
that complainant alleged that his supervisor downgraded his performance
evaluation to make him ineligible for a monetary award in reprisal for
prior EEO activity. Upon review, the Commission finds that the alleged
matter is like or related to the matters that had been brought to the
attention of the EEO Counselor, i.e., concerning complainant's job
performance, including receiving an award for his performance.
Therefore, we find that complainant's complaint was improperly dismissed.
The agency's decision dismissing complainant complaint is REVERSED and
we REMAND the matter for further processing in accordance with this
decision and applicable regulations.
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
December 29, 2005
__________________
Date