0120072639
02-19-2009
Janeice Y. McNeill, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Janeice Y. McNeill,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120072639
Agency No. 06R3FASJMC18
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated April 20, 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. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. In her complaint, as clarified, complainant
sought to amend her prior complaint numbered 06R3FASJMC15 to add the
claim that continued reprisal and failure to reasonably accommodate her
disability forced her to retire.1
The agency mischaracterized instant complaint 06R3FASJMC18 as alleging
reprisal discrimination when she was placed on a performance assistance
plan (PAP) on August 2, 2006. The PAP claim was already explicitly
included in prior complaint 06R3FASJMC15. In McNeill v. General
Services Administration, EEOC Appeal No. 0120070243 (April 3, 2007),
request to reconsider denied, EEOC Request No. 0520070483 (May 16, 2007),
the Commission reversed the agency's dismissal of complaint 06R3FASJMC15
for failure to state a claim. Complaint 06R3FASJMC15 alleged harassment
by co-workers and management, listing incidents from February 16, 2006
through the August 2, 2006 PAP.
The FAD dismissed instant complaint 06R3FASJMC18, as mischaracterized,
for being moot. It recited complainant's disability retirement.
The Office of Personnel Management (OPM) approved complainant for
disability retirement on or about November 30, 2006. The FAD reasoned
that the retirement was an interim event that assured the alleged
discrimination will not recur, and after being given an opportunity to
do so, complainant did not show she was entitled to compensatory damages.
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.
In finding complainant was not entitled to compensatory damages, the FAD
disputed the quality of the evidence complainant submitted in support
of damages. On appeal, complainant argues her complaint is not moot.
She argues that not only is she entitled to compensatory damages, but
she receives less pay than when she was employed. In opposition to the
appeal, the agency elaborates on points made in the FAD.
We find that the evidence of compensatory damages was of sufficient
quality for complainant's complaint, even as the complaint was
mischaracterized by the agency, to survive a dismissal based on mootness.
For example, a September 5, 2006, progress note by complainant's licensed
clinical social worker references a triggering of symptoms (all or
mostly psychological in nature) by the loss of her career. Further,
various statements by complainant and others were rejected by the agency
because they were not under oath or declaration. While statements in
affidavit form generally have more weight, statements not in this form
can still be acceptable evidence.
Moreover, as the complaint alleges constructive discharge, it is not moot.
If discrimination is found, possible remedies could include reinstatement
with back pay, and/or loss of income earning potential.
ORDER
The agency is ordered to process the remanded claim that complainant
was discriminated against based on reprisal for prior EEO activity and
disability when she was constructively discharged by being forced to
retire on disability, in accordance with 29 C.F.R. � 1614.108.2 The
agency shall acknowledge to the complainant that it has received the
remanded claims 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 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 (R0408)
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 (Z1008)
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
February 19, 2009
__________________
Date
1 Complainant clarified her complaint by letter to the agency's Regional
EEO Office dated February 9, 2007.
2 If the agency has already processed another complaint alleging
constructive discharge, or if a pending complaint has been amended to
include the claim of constructive discharge, than the agency may issue
a FAD dismissing complaint 06R3FASJMC18 for stating the same claim in
another complaint, if appropriate. 29 C.F.R. � 1614.107(a)(1).
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0120072639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072639