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.