Sharon A. Wheeler, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 11, 2001
01A01138_r (E.E.O.C. Jun. 11, 2001)

01A01138_r

06-11-2001

Sharon A. Wheeler, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Sharon A. Wheeler v. Department of the Army

01A01138

June 11, 2001

.

Sharon A. Wheeler,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A01138

Agency No. AGXAFO9910J0480

DECISION

The instant matter is an appeal from an agency decision concerning two

different complaints consolidated by the agency pursuant to 29 C.F.R. �

1614.606. In her complaints dated May 26, 1999 and August 22, 1999,

complainant claims that she was discriminated against on the basis of

disability and was retaliated against for filing a union grievance.

In her complaint dated May 26, 1999, complainant made the following

claims:

A management official delayed completing her performance appraisal;<1>

Complainant was never informed that overtime was available and overtime

was made available to a part-time secretary;

Complainant was never offered training in ACAMS and such training was

made available to a part-time secretary;

The wording and tone of the performance appraisals given to complainant

differed from those given to her co-workers;

During the 1995 appraisal period, everyone in the Analytical Branch

received an award except complainant;

In 1995 complainant was denied a disabled parking space by a management

official and was told by the official that if she �pushed for it� she

would be removed from her position.

In her complaint dated August 22, 1999, complainant made the following

claims:

Complainant was accused of not showing proper respect to a management

official;

Complainant was accused of filing a grievance with the union and was told

that if she had a problem, to see the Acting Branch Chief, not the union;

Complainant was denied reimbursement for her college tuition; and

Complainant did not receive a Step Increase award for an exceptional

appraisal when everyone else got an award.

The agency failed to consider all of complainant's claims, mentioning

only claims 5 and 10 (awards), claim 6 (parking space), claim 7 (respect

for management officials), and claim 9 (college tuition) in its decision.

The agency dismissed claim 6 as moot and the remainder of the complaint

for failing to state a claim. The Commission finds that claims 1,

7 and 8 were properly dismissed for failure to state a claim pursuant

to 29 C.F.R. � 1614.107(a)(1). Complainant has failed to identify how

these incidents adversely affected a term, condition, or privilege of

her employment.

The remainder of complainant's claims, however, claims 2, 3, 4, 5, 6,

9, and 10, do state a claim.

In its final decision, the agency determined that complainant was not

aggrieved, and therefore, could not state a claim. The Commission finds

that complainant was aggrieved by the incidents described in claims 2,

3, 4, 5, 6, 9, and 10.

The agency dismissed claim 6 on the ground of mootness. 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 claimed violation will

recur; and (2) interim relief or events have completely and irrevocably

eradicated the effects of the claimed 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.

The Commission finds that claim 6 is not moot. In the instant case,

complainant claimed that she suffered stress because of the actions at

issue, and she has requested the maximum remedy that the law permits.

An agency must address the issue of compensatory damages before it may

dismiss a complaint for mootness. See Rouston v. Nat'l Aeronautics

and Space Admin., EEOC Request No. 05970388 (March 18, 1999). When the

complainant requests compensatory damages, the agency should request that

the complainant provide some objective proof of the claimed damages,

as well as objective evidence linking those damages to the adverse

actions at issue. See Allen v. United States Postal Service, EEOC

Request No. 05970672 (June 12, 1998). The agency did not address the

issue of compensatory damages in its decision; therefore, the agency's

dismissal of claim 6 as moot was improper.

The agency's decision dismissing claims 1, 7, and 8 is AFFIRMED.

The agency's decision dismissing claims 2, 3, 4, 5, 6, 9, and 10

is REVERSED, and, we REMAND claims 2, 3, 4, 5, 6, 9, and 10 to the

agency for further processing in accordance with this decision and the

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 (M0900)

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

June 11, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1This claim was asserted by complainant in both complaints.