Debra K. Vess,
Complainant,

v.

Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.

Appeal No. 0120111039

Hearing No. 420-2010-00111X

Agency No. 2010014


DECISION

Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 19, 2010, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked
as a Laborer at the Agency’s Browns Ferry Nuclear Plant in Decatur,
Alabama. On December 17, 2009, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases
of sex (female) and age (57) when, on or about October 29-30, 2009,
and November 12-13, 2009, Complainant was not allowed to work as a
dual-rate foreman.

The Agency accepted the complaint for investigation. When the
investigation concluded, Complainant was provided a copy and given the
opportunity to request a hearing before an EEOC Administrative Judge (AJ).
Complainant submitted her timely request for a hearing and assigned to
an AJ.

The AJ issued his Acknowledgement Order to the parties.  On June 25, 2010,
the Agency filed its Motion to Dismiss or, in the alternative, to Remand
the Matter back to the Agency for a Final Agency Decision.  The Agency
argued that it had offered Complainant full relief to resolve the matter.
Complainant rejected the Agency’s offer.  The Agency indicated that
Complainant never requested compensatory damages.  Therefore, the Agency
claimed that there was nothing more Complainant could accomplish during
a hearing.  As such, the Agency contended that the AJ should either
dismiss the matter for mootness or cancel the hearing and remand the
matter back to the Agency for a final decision.

On September 10, 2010, the AJ issued his decision dismissing the
complaint “[p]ursuant to 29 C.F.R. § 1614.107(h)” for rejecting
“a certified offer of full relief.”  While the offer made by the
Agency to Complainant did not include an award of compensatory damages,
the AJ determined that Complainant did not properly request such damages.
Therefore, the AJ found the matter appropriate for dismissal pursuant to
29 C.F.R. § 1614.107(h).  The Agency issued its final decision on October
19, 2010, implementing the AJ’s decision to dismiss the complaint.

Complainant appealed asserting that the Agency’s investigation of the
matter was not complete and there were discrepancies in the record.
She believed that the discrepancies would have been addressed at the
hearing which never occurred.  Complainant also asserted that the matter
has never addressed how she was treated and that she was subject to
“humiliation, discrimination and embarrassment.”  The Agency argued
that the Commission should affirm the dismissal of the complaint.

ANALYSIS AND FINDINGS

On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect.  These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process.  Under these revisions, the Commission eliminated the dismissal
grounds of failure to accept a certified offer of full relief from the
regulations, formerly found at 29 C.F.R. § 1614.107(h). Therefore,
complaints can no longer be dismissed due to Complainant's failure to
accept a certified offer of full relief.  Furthermore, in addressing
the issue of non-compliance with an offer of full relief, the Commission
held that this regulatory change results in eliminating the elements of
an offer of full relief from “any acceptable analytical framework.”
See Jackson v. Dep’t of Justice EEOC Appeal No. 01A23736 (June 4, 2003);
Tripichio v. Dep’t of Justice, EEOC Appeal No. 01993307 (November 28,
2001); request for reconsideration denied, EEOC Request No. 05A20432
(May 17, 2002).

Therefore, because the new regulations have, in effect, eliminated the
“offer of full relief” as a dismissal basis, the issue of compliance
with the agency's “offer” of full relief becomes an issue of whether
the captioned complaint was properly dismissed on the grounds of mootness
pursuant 29 C.F.R. § 1614.107(a)(5). See Miller v. Dep’t of Treasury,
EEOC Appeal No. 01993839 (February 14, 2002); Nicholson v. U.S. Postal
Serv., EEOC Appeal 01A22195 (July 24, 2002).

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 is moot. To
determine whether the issues raised in Complainant's complaint are in fact
moot, it must be ascertained: (1) if it can be said with assurance that
there is no reasonable expectation that the alleged violation will recur,
and (2) if the 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 (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.

Based on a review of the record, the Commission finds that the AJ erred in
determining that the issue in Complainant's complaint was moot.  As noted
above, for a matter to be considered moot, there are two requirements
that need to be met.  As to the first element, we note that the Agency
has not provided any evidence of assurance that the alleged violation will
not recur.  In her complaint, Complainant alleges she was denied work as
a dual-rate foreman on a number of occasions, and there is no indication
in the record that these circumstances will not occur again.  In addition,
there is no indication that the responsible management officials alleged
to have discriminated have changed their position on this matter or
received contrary guidance or training.  Further, to establish mootness,
the record must show that interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
While the Agency asserts it offered Complainant full relief, there is no
evidence that Complainant has actually been provided with all the relief
she would be entitled to had she prevailed in her discrimination claim.
It is clear that she would be, at a minimum, entitled to a back pay
award and to some guarantee that future dual-rate foreman work will be
provided to her in a non-discriminatory fashion. We note that the Agency
argued that Complainant has not requested nor provided it or the AJ with
information pertaining to any claim to compensatory damages.  See Burdick
v. U.S. Postal Serv., EEOC Appeal No. 01A21318 (Jan. 28, 2003).  Even if
that were established, this alone would not render the matter moot as
Complainant is entitled to remedies beyond compensatory damages.

Accordingly, after a careful review of the record, the Commission
REVERSES the Agency's final action and REMANDS the matter to the Agency
in accordance with this decision and the ORDER below.

ORDER

The Agency shall submit to the Hearings Unit of the appropriate EEOC
field office the request for a hearing for the remanded complaint within
fifteen (15) calendar days of the date this decision becomes final.
The Agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The Agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. §1614.109 and the Agency shall issue a final
action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 (M0610)

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 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 (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 (Z0610)

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

November 14, 2011

__________________
Date


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0120111039





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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0120111039