01a53418
09-06-2005
Tyrone Hammond, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Tyrone Hammond v. Department of the Army
01A53418
September 6, 2005
.
Tyrone Hammond,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53418
Agency No. ARCELIT04APR0006
DECISION
Upon review, the Commission finds that a portion of the complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for being moot. In his complaint, the complainant claimed that he
was subjected to discrimination based on his race (African-American)
and reprisal for prior EEO activity when (1) he was given a letter of
reprimand on March 24, 2004, and (2) the agency conducted an unfair
Army Regulation 15-6 investigation upon which the reprimand was based.
The final agency decision (FAD) dismissed claim 1 for being moot, and
claim 2 by omission.
The FAD reasoned that claim 1 was moot because the complainant voluntarily
retired on September 30, 2004, and the reprimand was destroyed on December
7, 2004. In his complaint, the complainant requested damages for �slander
and defamation of character.�
Assuming arguendo that complainant were to prevail on claim 1, he might
be entitled to compensatory relief. The Commission has long held that the
potential for such damages means that a claim cannot be dismissed as being
moot. The agency must address the issue of compensatory damages when a
complainant shows objective evidence that he has incurred compensatory
damages and that the damages are related to the alleged discrimination.
See Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), request to reopen denied, EEOC Request No. 05930306
(February 1, 1993). Because complainant requested compensatory damages,
the agency should have requested that he 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).
In response to the complainant's appeal, the agency argues that the
complainant is not entitled to compensatory damages because he requested
them for defamation and slander, and the reprimand was not disseminated
beyond its author and the complainant. Given that the complainant was
not represented by an attorney when he filed his complaint, we decline to
interpret the words�defamation� and �slander� as used by the complainant
in such a narrow legal fashion. Rather, it is likely that the complainant
intended the terms to mean that he was emotionally damaged by the letter
of reprimand. Based on the foregoing, we find that the agency erred in
dismissing claim 1. 29 C.F.R. � 1614.107(a)(5).
The FAD dismissed claim 2 by omission. We find that claim 2 fails to
state a claim. The Commission has held that an employee cannot use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense , EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised his challenges to actions which occurred
during the AR 15-6 investigation was during the investigation itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the investigatory process.
The complaint is hereby remanded to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ordered to process claim 1 in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it has
received the remanded claim 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
September 6, 2005
__________________
Date