01A31120_r
03-24-2003
Charles A. Cooley, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Charles A. Cooley v. Department of Veterans Affairs
01A31120
March 24, 2003
.
Charles A. Cooley,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31120
Agency No. 200R-0632-2002103978
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 15, 2002, dismissing his 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. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability when:
On June 24, 2002, complainant became aware that his co-workers received
a bonus for a special construction project they worked on but he did
not receive the bonus.
In 1988, complainant was laid off for 8 months so that a non-veteran,
with no plumbing experience, could be hired.
In 1988, complainant was transferred twice out of the shop to the
project crew.
In 1988, complainant's supervisor cut into his locker looking for job
related materials.
In 1988, complainant's supervisor sent a letter to the Workmen's
Compensation Board controverting his claim.
In 1988, complainant's supervisor charged him annual leave without
his permission.
In 1988, complainant's supervisors were fixing time when other employees
in the shop took time off.
The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(5),
after determining that complainant had been paid the same cash award that
his co-workers received, and therefore, claim 1 was moot. The agency
dismissed claims 2 through 7, pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact.
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 fact finder 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. Department 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.
On appeal, the agency has supplied the record with a copy of form SF-50-B,
Notification of Personnel Action, describing payment to complainant of a
"group cash award" in the amount of $250 on July 30, 2002. Complainant
does not, on appeal, argue that he has not received the cash award.
Complainant also does not argue that the award was insufficient.
Accordingly, we find that complainant has been paid and that the agency
properly dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(5) as moot.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record discloses that the alleged discriminatory events described
in claims 2 through 7 occurred in 1988, but complainant did not initiate
contact with an EEO Counselor until July 9, 2002, which is well beyond the
forty-five day limitation period. On appeal, complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing claims 2 - 7 is proper.
We therefore AFFIRM the agency's final decision, dismissing complainant's
complaint for the reasons stated herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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
March 24, 2003
__________________
Date