David I. Young, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a03245 (E.E.O.C. Jul. 6, 2000)

01a03245

07-06-2000

David I. Young, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


David I. Young v. Department of Veterans Affairs

01A03245

July 6, 2000

David I. Young, )

Complainant, )

)

v. ) Appeal No. 01A03245

) Agency No. 92-1683

Togo D. West, Jr., ) Hearing No. 160-A0-8289X

Secretary, )

Department of Veterans Affairs, )

Agency. )

________________________________)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The final agency decision was dated March

17, 2000. The appeal was postmarked March 31, 2000. Accordingly,

the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.402 (a)), and

is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

The issue on appeal is whether the agency, for the reasons provided below,

properly dismissed complainant's complaint.

Complainant filed a formal complaint against the agency on November 7,

1991. Specifically, he claimed that management officials discriminated

against him based on his race, color, national origin, and age when: a

March 1991 scheduling agreement was breached by management in March/April

1991; management, in breach of the agreement, scheduled him to work

alone, in August 1991, while he was on sick leave in a hospital;

in September 1991, he returned to work on a part-time basis and his

supervisor scheduled him to work in the day time; on October 21, 1991,

during an EEO pre-complaint counseling meeting, he was physically and

verbally assaulted by his supervisor.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). Before the hearing, which was

scheduled for August 3, 1995, complainant was terminated by the agency.

Complainant filed an appeal with the Merit Systems Protection Board

(MSPB). Complainant, who, at the time, was represented by an attorney,

agreed that, pending the final disposition of his MSPB appeal, he would

withdraw his EEO complaint and his hearing request. The parties,

including the AJ, also agreed that, after the MSPB reached a final

decision, complainant, within 45 days, could request that his complaint

be reinstated.

On August 3, 1999, the MSPB issued a final decision that affirmed

complainant's termination. Complainant, however, did not file his

reinstatement request until November 5, 1999. On January 18, 2000,

a subsequent EEOC AJ ordered complainant to show why his complaint

should not be dismissed on the grounds that he failed to timely request

reinstatement. In response, complainant maintained that the date the

MSPB issued a final decision on his appeal was October 25, 1999, not

August 3, 1999.<2> On February 16, 2000, the AJ issued a dismissal order.

Contrary to complainant's assertion otherwise, the AJ found that August

3, 1999 was the �date of the final disposition.� On March 17, 2000, the

agency issued a final order accepting and implementing the AJ's order.

After a careful review of the record, we find that complainant's complaint

was properly dismissed by both the AJ and the agency. Notwithstanding the

grounds set forth by the AJ and the agency, however, we find that the

more appropriate grounds for dismissal is that the complaint is now moot.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited

as 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 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 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.

Here, the record reflects that there is no reasonable expectation that

the alleged violations will recur because complainant is no longer an

agency employee. Furthermore, we note that the alleged discriminatory

actions concern complainant's working conditions; therefore, they will

have no residual effects on complainant's future employment opportunities.

Consequently, we find that complainant's termination eradicated the

effects of the alleged discriminatory actions and that no further relief

is available. Finally, we note that complainant would not be entitled to

compensatory damages, as the matters at issue herein occurred prior to

the enactment of the Civil Rights Act of 1991, i.e., November 21, 1991.

Landgraf v. USI Film Products, 511 U.S. 244 (1994).

Accordingly, we find that the dismissal of the complaint was proper and

it is 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:

_07-06-00_______ _________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2Our review of the record, however, does not support complainant's

contention. As noted by the agency, the pertinent MSPB decision is docket

number NY-0752-95-0324-I-3, issued on August 3, 1999. In this decision,

the MSPB affirmed the agency's removal action. However, it remanded

complainant's allegation that he was constructively discharged from April

5, 1994, until December 12, 1994. This allegation was docketed as a

new appeal, docket number NY-0752-99-0394-I-1. On September 20, 1999,

the allegation was dismissed for lack of jurisdiction. This decision

became final on October 25, 1999.