Annette E. Phillips, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01992537 (E.E.O.C. Aug. 28, 2000)

01992537

08-28-2000

Annette E. Phillips, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Annette E. Phillips v. Department of Defense

01992537

August 28, 2000

.

Annette E. Phillips,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 01992537

Agency No. DFASHQ980001

DECISION

Upon review, the Commission finds that the agency's decision dated January

14, 1999, dismissing complainant's complaint as moot is proper pursuant

to the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(5)).<1> The issues raised in a complaint of discrimination

are no longer in dispute (1) if it can be said with assurance that there

is no reasonable expectation that the alleged violation will recur,

and (2) if interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation. County of Los Angeles

v. Davis, 440 U.S. 625 (1979). In her complaint, complainant, a former

agency employee, alleged that since March 1996, she was subjected to a

debt collection action from the agency for reimbursement for her 1993

leave, i.e., the debt amount, including interest, penalties, and fees,

of $1,724.61.<2> As relief, complainant requested, inter alia, the

cancellation of the debt, compensatory damages, and her attorney's fees.

The record indicates that by letter dated April 1, 1998, the agency

requested that complainant submit any documentation to substantiate

her claim for compensatory damages. Although complainant's attorney

received such request on April 3, 1998, she failed to respond to the

agency's request or provide any objective evidence to show that she has

incurred the alleged damages, and that the damages are related to the

alleged discrimination. See Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,

EEOC Request No. 05930306 (February 1, 1993). Based on the foregoing,

the Commission finds that the agency properly determined that complainant

was not entitled to compensatory damages.

The record also indicates that by letter dated December 28, 1998, the

agency informed complainant, through her attorney, that the alleged

debt collection action was terminated. Furthermore, the agency, in its

decision, stated that complainant was entitled to reasonable attorney's

fees and asked her to submit a verified statement of costs and attorney's

fees as appropriate in accordance with the regulations. After a review

of the record, the Commission finds that the agency's termination of

the alleged collection action against complainant rendered the complaint

moot.

Accordingly, the agency's decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

August 28, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On 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. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2It is noted that in March 1996, the parties previously entered into

a settlement agreement to resolve complainant's previous complaint,

which provided, in part, she would be released from any and all claims

that the agency had against her, arising out of her past employment with

the agency. Thereafter, complainant alleged that the agency breached the

settlement agreement when the agency continued to pursue a collection

action against her concerning her 1993 leave. The agency claimed that

it did not have authority to waive the debt and complainant filed the

instant complaint.