0120112901
10-06-2011
Veronica Suhol, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Secret Service), Agency.
Veronica Suhol,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Secret Service),
Agency.
Appeal No. 0120112901
Agency No. HS-USSS-00166-2011
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated April
15, 2011, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Human Resources Specialist at the Agency’s Office of Human
Resources and Training, Personnel Division, Employee Relations Branch
in Washington, DC.
Complainant filed a formal complaint dated December 2, 2010, alleging
that the Agency subjected her to discrimination on the basis of sex
(female) and parental status when:
1. she did not timely receive her final performance appraisal for the
period ending on June 30, 2010; and
2. she was not awarded a performance award at the end of fiscal year 2010.
As relief, Complainant requested that she get her performance appraisal
and a performance award.
According to the EEO counselor’s report, Complainant was out of
approved maternity leave from March 29, 2010 through September 13, 2010.
The Agency gave her the appraisal for the period ending June 30, 2010,
on December 9, 2010. On December 19, 2010, Complainant received an
individual time-off award of 24 hours for her performance. Complainant
contended in her complaint that in September 2010, she asked Chief 1
why she had not yet received her performance appraisal and award.
The Agency dismissed the complaint for being moot. It reasoned that
interim events completely and irrevocably eradicated the discrimination
alleged in her complaint, i.e., the issuance of the appraisal and
performance award, and that Complainant demonstrated no further harm.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant contends that the Acting Chief’s (Chief 1) reason for
not timely giving her the performance appraisal – that as acting
she “did not feel that she was the appropriate individual to fairly
evaluate” Complainant – was not credible. She argues that Chief
1 was the Acting Chief over Complainant’s unit from September 25,
2009 to January 31, 2010. Complainant contends Chief 1 was responsible
for timely giving her the performance appraisal and performance award.
The performance appraisal Complainant received on December 9, 2010,
was completed by Chief 2, the person who became the permanent Chief of
her unit. Complainant contends that the award she received on December
19, 2010, was for work she performed from November 15, 2010 to December 3,
2010, not for work performed during fiscal year 2010.
The Agency argues that Complainant’s claim that her award covered work
performed from November 15, 2010, to December 3, 2010, outside the rating
period, on its face is suspect. It reasons that excluding Thanksgiving,
this period only covers 14 work days, and the award was too big for this.
It also argues that the timing of the award, shortly after the appraisal
rating was received, shows it was meant to be a rating period award.
Citing Lawrence-Hinson v. Department of Justice, EEOC Appeal
No. 0120110068 (March 10, 2011), the Agency argues that the basis of
parental status should be dismissed because this basis is not within
the jurisdiction of the EEOC.
ANALYSIS AND FINDINGS
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. Dep’t 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.
Regarding the delayed appraisal (claim 1), the Agency supports
its determination of mootness by citing to a similar case, Skinner
v. Department of Defense (Defense Intelligence Agency), EEOC Appeal
No. 0120111019 (May 26, 2011). In Skinner, the Commission dismissed
as moot a claim where a complainant alleged a supervisor refused to
issue a performance appraisal, the supervisor no longer supervised
the complainant, and the complainant did not request damages. We are
persuaded that the Agency correctly determined that claim 1 is moot.
It is undisputed that Complainant received the performance appraisal on
December 9, 2010. Complainant has not explained how she was harmed by the
delay. Therefore, we find that the issuance of the appraisal irrevocably
eradicated the effects of the alleged discrimination. See Skinner.
Applying the same reasoning, we find claim 2 is moot.1 Complainant
contends the award she received was not for performance during fiscal year
2010, but subsequent to it. While there is some support for her argument,
the record nonetheless establishes that the award was sufficiently
connected to the fiscal year 2010 performance appraisal. First, both
the appraisal and the reason for the award cite the coordinating and
managing of the merit review process, and second, the award was issued
shortly after the appraisal rating.
In the alternative, we find that Complainant’s complaint fails to
state a claim because she is not aggrieved. 29 C.F.R. § 1614.107(a)(1).
Complainant has not explained how she was harmed by the delayed appraisal
and performance award.
CONCLUSION
Based upon a review of the record and for the foregoing reasons, the
FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 6, 2011
__________________
Date
1 Because we affirm Agency’s dismissal of the FAD for mootness, we need
not address the Agency’s argument regarding parental status. We note
that the case the Agency cited by the Agency on parental status stands
for the proposition argued by the Agency. However, the counselor’s
report suggests that by parental status, Complainant may also have been
referring to a period she was pregnant. The EEOC has jurisdiction for
claims of discrimination based on pregnancy.
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0120112901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112901