0120071970
08-21-2007
Gaby Markey, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Gaby Markey,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120071970
Agency No. 2005-18827-FAA-01
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated February 12, 2007, 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. Complainant alleged
that she was subjected to discrimination based on her national origin
(Hungarian) and reprisal for prior protected EEO activity when she was
terminated during her probationary period effective July 23, 2004.
Previously, the agency investigated complainant's complaint and notified
her of the right to request a hearing before an EEOC Administrative Judge.
Complainant requested a decision without a hearing. The agency found
no discrimination, and complainant appealed. In Markey v. Department of
Transportation (Federal Aviation Administration), EEOC Appeal No. 01A55564
(September 8, 2006), the Commission ruled that the agency's investigation
was insufficient and ordered it to do a supplementation investigation
and issue a new FAD.
Prior to the above decision, complainant settled an "individual right
of action appeal" filed with the Merit Systems Protection Board (MSPB).
Under the February 17, 2005, settlement agreement, the agency agreed to
"correct" complainant's employment record by removing her termination
of July 23, 2004, and replace it with her resignation effective on or
about December 18, 2004, with a set amount of back pay; and benefits.
The settlement agreement closed complainant's MSPB individual right
of action appeal. It explicitly provided that nothing therein would
contribute to or be considered as a settlement of complainant's pending
EEO complaint 2005-18827-FAA-01, and that nothing therein would prevent
complainant from pursing her EEO complaint.
Following the supplemental investigation, the agency issued a FAD
dismissing complainant's complaint for failure to state a claim.
29 C.F.R. � 1614.107(a)(1). The FAD reasoned that as a result of the
settlement agreement complainant was not aggrieved at the time she filed
her formal complaint since her employment record was changed to show she
was still employed then, and complainant subsequently resigned with back
pay and benefits.
Upon review, the Commission finds that the dismissal is more properly
analyzed as whether the complaint was rendered moot by the settlement
before the MSPB which rescinded the termination and complainant's
subsequent resignation. 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 fact finder 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. 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 termination claim has not been rendered moot. The record shows
complainant has requested compensatory damages. Because of this, the
agency should have requested that she provide some objective proof of
the alleged damages incurred, as well as objective evidence linking those
damages to the adverse action at issue. See Allen v. United States Postal
Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Department
of Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the agency
did not address the issue of compensatory damages, we find that dismissal
of the complaint is improper. See Rouston v. National Aeronautics and
Space Admin., EEOC Request No. 05970388 (March 18, 1999). Therefore,
we find that the dismissal of complainant's complaint was inappropriate.
ORDER
The agency is ordered to issue a FAD on the merits complainant's complaint
within 45 calendar days after this decision becomes final.
A copy of the FAD 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
August 21, 2007
__________________
Date
2
0120071970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071970