01982050
03-04-1999
Wanda F. Jackson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Wanda F. Jackson v. Department of Veterans Affairs
01982050
March 4, 1999
Wanda F. Jackson, )
Appellant, )
)
v. ) Appeal No. 01982050
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
December 29, 1997 dismissing appellant's complaint as moot.
In the complaint appellant alleged that she was discriminated against on
the basis of disability when: appellant was subjected to frequent changes
in assignment and duty hours; appellant's request to change duty hours
was denied; appellant's coworkers were given access to confidential
information on appellant's leave record; appellant was placed on sick
leave restriction; appellant received a letter of counseling and;
appellant was assigned to the Chemistry Lab. The agency described
appellant's complaint as a complaint of harassment.
The agency found that the complaint was now moot because: (1) effective
July 16, 1997 appellant was approved for disability retirement; (2) the
letter of sick leave restriction, the letter of counseling, the May 9,
1996 memorandum which formed the basis for the counseling, were rescinded
and all copies were destroyed; and (3) appellant provided no evidence of
compensatory damages in response to the agency's letter dated July 22,
1997 requesting submission of such damages.
A complaint which is moot shall be dismissed. 29 C.F.R. �1614.107(e).
Appellant has not challenged the agency's assertion that she retired on
disability or that the relevant documents at issue in the complaint were
rescinded and expunged.
If the possibility of an award of compensatory damages exists, then
the complaint is not moot. See Glover v. United States Postal Serv.,
EEOC Appeal No. 01930696 (Dec. 9, 1993). The agency asserts that it
sent appellant a request for information on the claim for compensatory
damages, but that appellant did not respond. On appeal appellant has
not claimed that she did not receive the request. Appellant argues on
appeal that she need not respond to the request for compensatory damages
at this stage of the administrative process.
The Commission notes that the record does contain a letter from appellant
dated May 12, 1997 which might be construed as evidence in support of her
claim for compensatory damages. Appellant does not claim on appeal that
this May 12, 1997 letter constitutes in whole or in part her evidence
in support of a claim for compensatory damages. The Commission finds
the May 12, 1997 letter is insufficient to show that appellant might
be entitled to compensatory damages if she prevailed on the complaint.
See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5,
1993) ("To properly explain the emotional distress, such statements
should include detailed information on . . . the distress . . .").
The record does not contain a copy of the agency's letter dated July 22,
1997 requesting evidence in support of the claim for compensatory damages.
The Commission declines to find the instant complaint moot solely
because the agency has not included a copy of the letter requesting
compensatory damages in the record. Without a copy of that letter the
Commission can not determine what information was requested of appellant
and whether appellant was sufficiently informed of the need to provide
such information.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall place in the record a copy of the July 22, 1997 letter
requesting compensatory damages. Within 30 days of the date this decision
becomes final the agency shall either reissue a decision dismissing the
complaint as moot or issue a letter to appellant accepting the complaint
for investigation. A copy of the new decision or letter accepting the
complaint must be sent to the Compliance Officer referenced herein.
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:
Mar 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations