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.