U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Homer B.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120181122 Agency No. DON170016701645 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 8, 2017, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue Complainant worked for the Agency as a Research Physicist, ND-4 in Bethesda, Maryland. Complainant, a senior research scientist, served as the Facility Manager for the Positive Ion Accelerator (PIA) at the Agency's Naval Surface Warfare Center. Complainant's work with the PIA was based on his 25-years of experience in radiation science and neutron development research. (Appeal at 2). After deciding in 2014 to expand its radiation sciences capabilities, Agency officials assigned Complainant with researching, and locating two neutron generators to be purchased with established funding. According to Complainant, the neutron generations would have greatly expanded his ability to conduct research. However, in early April 2015, Agency officials informed Complainant that the purchase of the neutron generators was being canceled. Moreover, Complainant's supervisor informed Complainant that he was considering transferring the PIA to another facility. The record further indicates that the PIA was ultimately removed from the facility, along with funding for Complainant's research. In May of 2016, Complainant's supervisor made the decision not to continue operating procedures for the PIA, which was ultimately transferred away from the Agency's facility in 2017. On May 9, 2017, Complainant filed an EEO complaint alleging discrimination based on age when: 1. Complainant was subjected to a hostile work environment from April 2015 until May 2017 when the following occurred: a. in an April 2015, an Agency official indicated that he had canceled the purchase of two neutron generators and intended to move the PIA from Carderock to another site; b. in April 2015, an Agency official stated that he was "cleaning house" and intended to get rid of Complainant, his research and the PIA; c. beginning in October 2015, Complainant was forced to use funds intended for research and developed to plan, facilitate and execute the move of the PIA, which occurred in March 2017; d. in May 2016, an Agency official directed his staff not to renew the Standard Operating Procedure for the PIA; and e. in February 2017, an Agency official lobbied to have Complainant's research funding taken away once the PIA was removed. 2. Complainant was retaliated against for prior protected activity (instant complaint - March 2017) when: a. in May 2017, an Agency official indicated that Complainant was no longer of value and would not be allowed to perform research at Carderock, and informed him he would not receive any research funding for the remainder of Fiscal Year 2017; b. in May 2017, an Agency official sent Complainant an email informing him that his research funding had been reduced and he would need to come up with new sources of funding, or he would be unable to continue his research. The record further indicates that Complainant retired from the Agency effective July 28, 2017. The Agency initially accepted the complaint and conducted an investigation. However, following the completion of the investigation, the Agency issued its November 8, 2017 final decision dismissing the complaint, in its entirety, as moot pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(5). The Agency determined that Complainant's retirement effectively eradicated the effects of the Agency's alleged discriminatory conduct. This appeal followed. ANALYSIS AND FINDINGS EOC Regulation 29 C.F.R. §1614.107(e) provides for the dismissal of a complaint when the issues raised in it have been rendered moot. To determine whether the issues raised in a 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(s) 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). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. In the instant complaint, we determine that Complainant's retirement did not completely and irrevocably eradicate the effects of the alleged discrimination. While his retirement indicates that the first prong of the mootness test is established (no reasonable expectation that the alleged discrimination will recur), there has been no showing that no relief was available if discrimination was proved. We note that, on appeal, Complainant asserts that he was forced to retire from the Agency because of the alleged discrimination. Moreover, this matter had been the subject of discussion between Complainant's counsel and the Agency prior to the issuance of the instant final decision.2 Because Complainant has clearly raised a claim of constructive discharge, we determine that the subject claims have not necessarily been rendered moot by his retirement. If Complainant were to prevail on a claim of constructive discharge, he would be entitled to reinstatement, and workplace remedial relief would then be available to him. Therefore, the issue of constructive discharge must be remanded to the Agency for further processing. CONCLUSION The Agency's final decision to dismiss the instant formal complaint on the grounds of mootness is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to accept Complainant's constructive discharge claim as an amendment to his formal complaint and to conduct a supplemental investigation on the issue in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded constructive discharge claim within thirty (30) calendar days of the date this decision was issued. The Agency shall reissue Complainant a copy of the investigative file, as supplemented with the constructive discharge claim, and shall notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision was issued, 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 (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 May 19, 2018 __________________ 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 Despite the Agency's representations in its final decision to the contrary, we interpret the contact between Complainant's counsel and the Agency's EEO Officer concerning the allegation of constructive discharge as a valid attempt to amend the complaint with a claim that is like or related to Complainant's hostile work environment claim. 29 C.F.R. § 1614.106(d). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181122 6 0120181122