U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bret B.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency. Appeal No. 0120171656 Agency No. 9N0D16015 DECISION Complainant's representative filed an appeal with this Commission from an Agency final decision dated, March 3, 2017, dismissing Complainant's complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as an Operations Assistant in the kitchen of the Agency's Woodlawn Golf Course at Ramstein Air Base in Germany. Believing that he was subjected to discrimination based on his age and disability, Complainant filed an EEO complaint on October 28, 2017. The Agency initially accepted the complaint for investigation and framed the claims as follows: (a) On or about April 30, 2016, Complainant was denied a reasonable accommodation when management did not engage in the interactive process with him; (b) On May 4, 2016, Complainant was terminated from his position as Operations Assistant; (c) On August 19, 2016, Complainant was denied access to documentation regarding his termination. On January 10, 2017, Complainant died. According to the Agency, on February 14, 2017, the Agency emailed Complainant's non-attorney representative (hereinafter "Representative M") of record, requesting the contact information of the executor or administrator of Complainant's estate within fifteen days. Two days after the expiration of the Agency's deadline, on March 3, 2017, the Agency dismissed the formal complaint. In the instant final decision, the Agency determined that the complaint was rendered moot. Additionally, the Agency believed that dismissal was appropriate because it did not receive a response to its written request for information. The Agency found that there was no documentation from Complainant's estate indicating that Representative M was authorized to represent the estate in continuing the EEO process. Representative M, on Complainant's behalf, filed the instant appeal. 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. As an initial matter, we note that the Commission has held that a complainant's claim is not extinguished merely because of his death. Phillips v. Department of the Air Force, EEOC Request No. 05910930 (January 31, 1992). We have also held that a federal employee's discrimination complaint that has the potential for monetary relief survives the death of the complainant. Hanley v. Department of Veterans Affairs, EEOC Appeal No. 01890296 (April 11, 1989). As noted above, the Agency also reasoned that the formal complaint should be dismissed pursuant to 29 C.F.R. 1614.107(a)(7), which permits dismissal "where the Agency has provided the complainant with a written request to provide relevant information . . . and the complainant has failed to respond to the request within 15 days of its receipt . . . provided that the request included a notice of the proposed dismissal" (emphasis added). A review of the February 14, 2017 e-mail, and the January 31, 2017 attached letter, reveals that the Agency sought the contact information of the executor in order to "continue with providing pertinent documents and updates" regarding Complainant's complaint. The letter does not state that failure to respond to the request could result in the dismissal of the complaint. Moreover, we note that the request was only sent via email, on one occasion, and only seventeen days later the complaint was dismissed. The instant record does not reflect that the request was mailed to Complainant's address of record or that of his representative. There is no evidence that the representative ever received the request for information. Therefore, we find that the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).2 CONCLUSION The Agency's dismissal is REVERSED and the formal complaint is REMANDED to the Agency for a supplemental investigation in accordance with the ORDER below. ORDER Within thirty (30) calendar days of receipt of this order, the Agency shall conduct a supplemental investigation, to include the following actions: Submit a written request to Complainant's spouse and representative, at their respective addresses of record, seeking the contact information of the executor or administrator of Complainant's estate. Such correspondence shall include specific language informing the recipients that failure to provide a response may result in the dismissal of the complaint. Copies of the Agency's letters to Complainant's spouse and representative must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610) 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 (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 September 13, 2017 __________________ 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 Due to the incomplete record we shall not consider whether the complaint was rendered moot as to compensatory damages. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171656 2 0120171656