U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Noah S.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency. Appeal No. 0120141200 Agency No. HSCBP010902013 DECISION Relatives of Complainant, now deceased, filed a timely appeal with this Commission from the Agency's final decision dated December 30, 2013, dismissing a formal 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 During the period at issue, Complainant worked as a Supervisory Officer, GS-1895-13 at the Agency's Area Port of Cleveland Office in Middleburg Heights, Ohio. On April 3, 2013, Complainant initiated contact with an Equal Employment Opportunity (EEO) Counselor. Informal efforts to resolve his concerns were unsuccessful. On or about May 20, 2013, Complainant died. The record reflects that the Agency then communicated with Complainant's daughter. On June 28, 2013, the Agency conducted the final interview with Complainant's daughter. During the interview, the Agency outlined the potential options in proceeding with the case. On July 19, 2013, Complainant's daughter filed the instant formal complaint alleging that the Agency subjected Complainant to a hostile work environment and discrimination on the bases of race, national origin, color and age. Complainant's daughter listed Complainant's brother as the designated representative. On December 30, 2013, the Agency issued the instant final decision. Therein, the Agency dismissed the case pursuant to 29 C.F.R. § 1614.107(a)(5), determining the issues were moot. The Agency determined that the complaint was rendered moot by Complainant's death. Additionally, the Agency noted that Complainant did not seek specific compensatory damages. The instant appeal followed. Complainant's brother submitted the appeal. On appeal, he contends that on November 8, 14 and 19, 2013, he spoke with an Agency EEO investigator and discussed the circumstances of the complaint. Complainant's brother contends that he spoke with the investigator about how to quantify possible compensation, but that the Agency did not specifically address an exact amount. He contends that based on the information from the investigator, he believed that the process would take some time before discussion of exact compensation would be discussed. In response, the Agency contends that neither Complainant's daughter nor Complainant's brother has established that they can legally act on behalf of Complainant's estate. The Agency contends that Complainant's daughter and brother have not provided any official documentation to support their authority to act on behalf of Complainant's estate. Additionally, the Agency reiterated its argument that the proceedings are moot; that Complainant did not seek compensatory damages for the claims; and, that there is no basis for an award of such damages. The Agency also argues that the underlying EEO complaint, purportedly filed by Complainant's daughter, was untimely filed, and that some of the matters ultimately raised in the formal complaint were not timely raised with an EEO Counselor. ANALYSIS AND FINDINGS As a preliminary matter, we determine that the analysis of this case is most appropriately analyzed in terms of whether the matter raised in the formal complaint states a claim. EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Where a complainant has initiated the EEO process prior to his or her death by at least contacting an EEO Counselor, an estate may represent the deceased complainant. Estate of John A. McCoy v. USPS, EEOC Appeal No. 01A33474 (November 13, 2003); Estate of Allen P. Spencer v. Department of Agriculture, EEOC Appeal No. 0120060669 (July 8, 2008). However, we determine that failure to provide documentation of authority to act on behalf of an estate can constitute a basis for dismissing the complaint. Here, Complainant's daughter and brother have failed to provide legal documentation establishing that either, or both, are official executor(s) of Complainant's estate. The record demonstrates that on July 22, 2013, the Assistant Director of Complaints Management and Investigations for the Office of Diversity and Civil Rights, emailed Complainant and acknowledged that Complainant's daughter wished to designate Complainant's brother as the representative in the EEO complaint process. The Assistant Director also requested that when she was able to complete the details as to who would be the Official Executor of Complainant's estate to then provide the information to the Agency. This information was not provided by Complainant's daughter or brother. CONCLUSION Accordingly, the Agency's dismissal of the formal complaint, for the reason set forth above, is AFFIRMED. Because we affirm the Agency's dismissal for the reason discussed above, we will not address dismissal grounds of mootness raised in the final decision, or the Agency's various appellate arguments regarding possible dismissal on other grounds. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations December 17, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141200 2 0120141200