01983972
06-02-1999
Thomas R. Bouchard, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Thomas R. Bouchard v. Social Security Administration
01983972
June 2, 1999
Thomas R. Bouchard, )
Appellant, )
)
v. ) Appeal No. 01983972
) Agency Nos. 98-0013-SSA
Kenneth S. Apfel, ) 98-0281-SSA
Commissioner, )
Social Security Administration, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from an agency decision
dated March 18, 1998 dismissing a portion of two of appellant's EEO
complaints alleging retaliation and race, sex, disability, and age
discrimination.
Mootness
The agency dismissed allegations 1 - 3, 5, 7 - 10, 12 - 32, and 34 - 42 as
moot because appellant had retired from the agency on December 30, 1997.
These allegations concern, for the most part, harassment and denial
of reasonable accommodation. To determine whether the issues raised
in appellant's complaints remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violations will recur, and (2) if the interim relief
or events have completely and irrevocably eradicated the effects of
the alleged violations. 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.
EEOC Regulation 29 C.F.R. �1614.107(e) requires an agency to dismiss
any portion of a complaint that is moot.
On appeal appellant argues that he has "not been made whole for the
emotional stress caused by [the agency's] EEO violations nor the
physical problems they created." The Commission finds that appellant
is effectively requesting compensatory damages and that the portion of
the complaint alleging discrimination based on retaliation and race,
sex, and disability is not moot. Van Wersch v. Department of Health
and Human Svcs., EEOC Request No. 05980219 (Nov. 20, 1998) (citation
omitted). Regarding appellant's claim of age discrimination, we find that
compensatory damages are not awardable for claims arising under the Age
Discrimination in Employment Act (ADEA) of 1967. Falks v. Department
of the Treasury, EEOC Request No. 05960250 (Sept. 5, 1996) (citations
omitted).
On appeal appellant also states that he has been raising a claim of
constructive discharge. Because appellant wishes to pursue this
constructive discharge allegation, we find that allegations 1 - 3, 5,
7 - 10, 12 - 32, and 34 - 42 (in their entirety) are not moot. There is
no indication that appellant has received EEO counseling regarding his
constructive discharge allegation. The agency shall provide appellant
with EEO counseling regarding his constructive discharge allegation.
Election to File Grievance
The agency also dismissed allegations 4 (appellant was required to take
leave) and 11 (reprimand for working after hours and using facsimile
machine) on the grounds that appellant raised the matter in the negotiated
grievance procedure. The agency shall dismiss any portion of a complaint
where the complainant has raised the matter in a negotiated grievance
procedure that permits allegations of discrimination and �1614.301
indicates that the complainant has elected to pursue the non-EEO process.
29 C.F.R. �1614.107(d). An aggrieved employee who files a grievance with
an agency whose negotiated agreement permits the acceptance of grievances
which allege discrimination may not thereafter file a complaint on the
same matter. Id. at �1614.301(a).
The agency has failed to include a copy of the negotiated agreement or
the grievances in the record. It is the Commission's policy to remand
any dismissal of an allegation where the agency does not include a copy
of the relevant portion of the negotiated agreement in the record such
that the Commission can determine whether the negotiated grievance
procedure falls within the coverage of �1614.301. See Westbrook
v. Department of Defense, EEOC Request No. 05910671 (Oct. 25, 1991).
In this case, the agency did not include the relevant portion of the
negotiated agreement that shows whether employees have the right to file
grievances alleging discrimination. Therefore, the Commission shall
remand the matter to the agency so that the agency can supplement the
record with the relevant portion of the negotiated agreement. See id.
The agency shall also place a copy of the grievances in the record.
The agency's decision dismissing allegations 1 - 3, 5, 7 - 10, 12 - 32,
and 34 - 42, is REVERSED and we REMAND these allegations to the agency
for further processing in accordance with this decision and applicable
regulations. The agency's decision dismissing allegations 4 and 11 is
VACATED and we REMAND allegations 4 and 11 to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency shall supplement the record with a copy of the relevant
portion of the negotiated agreement showing whether appellant had
the right to raise allegations of discriminatory treatment under the
negotiated grievance procedure. The agency shall also supplement the
record with a copy of the grievances at issue. Within 30 days of the
date this decision becomes final, the agency shall issue a new decision
dismissing allegations 4 and 11 or issue a letter to appellant accepting
allegations 4 and 11 for investigation. The agency shall submit a copy
of the decision dismissing allegations 4 and 11 or a copy of the letter
to appellant accepting allegations 4 and 11 for investigation, to the
Compliance Officer as referenced herein.
The agency shall contact appellant within 30 days of the date this
decision becomes final and notify appellant that it will provide appellant
with EEO counseling regarding his constructive discharge allegation.
A copy of the agency's letter to appellant informing him that EEO
counseling will be provided regarding the constructive discharge
allegation must be sent to the Compliance Officer referenced herein.
The agency is ORDERED to process allegations 1 - 3, 5, 7 - 10, 12 - 32,
and 34 - 42, in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received allegations 1 - 3, 5,
7 - 10, 12 - 32, and 34 - 42, within 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 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 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. �l6l4.604(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:
June 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations