Gary C. Smothers, Appellant,v.William S. Cohen, Secretary, Department of Defense (Army and Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionJan 4, 1999
05970081 (E.E.O.C. Jan. 4, 1999)

05970081

01-04-1999

Gary C. Smothers, Appellant, v. William S. Cohen, Secretary, Department of Defense (Army and Air Force Exchange Service), Agency.


Gary C. Smothers v. Department of Defense

05970081

January 4, 1999

Gary C. Smothers, )

Appellant, )

) Request No. 05970081

v. ) Appeal No. 01956552

) Agency No. 93.130

William S. Cohen, )

Secretary, )

Department of Defense )

(Army and Air Force Exchange )

Service), )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On October 24, 1996, the Department of Defense (Army and Air Force

Exchange Service) (hereinafter referred to as the agency) timely initiated

a request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Gary C. Smothers v. William J. Perry,

Secretary, Department of Defense (Army and Air Force Exchange Service),

EEOC Appeal No. 01956552 (September 30, 1996). EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

set forth herein, the agency's request is denied. Nevertheless, the

Commission will exercise its discretion to reconsider the previous

decision on its own motion.

The issue presented is whether the previous decision properly vacated the

Settlement Agreement of August 1994 and remanded appellant's complaint

for continued processing from the point where processing ceased.

As described in the previous decision, the parties entered into a

Settlement Agreement (SA) in August 1995 with regard to appellant's job

duties. In May 1995, appellant alleged that the agency had breached

the SA. In August 1995, the agency issued a final agency decision

(FAD), finding that it had not breached the SA. On appeal, the previous

decision vacated the SA, finding that it did not represent a meeting of

the minds of the parties. The agency has filed the instant request for

reconsideration (RTR), offering new information, i.e., that appellant

retired from the agency as of October 31, 1995.

The Commission may, in its discretion, reconsider any previous decision

when the party requesting reconsideration submits written argument

or evidence that tends to establish at least one of the criteria of

29 C.F.R. �1614.407(c). Having reviewed the record and submissions

of the parties, we find that the agency's request fails to meet the

criteria of 29 C.F.R. �1614.407(c), in that, its information is not

new, having been available and known to the agency prior to issuance of

the previous decision. See 29 C.F.R. �1614.407(c)(1). Nevertheless,

in the interests of judicial economy, the Commission will reconsider

the previous decision on its own motion. Upon reconsideration, the

Commission vacates the previous decision and, because of his retirement,

finds that appellant's complaint is moot. 29 C.F.R. �1614.107(e);

see Rubio v. USPS, EEOC Request No. 05940260 (December 15, 1994).

EEOC Regulation 29 C.F.R. �1614.107(e) allows for the dismissal of

a complaint or allegations therein when the issues raised are moot.

To determine whether the issues raised in appellant's complaint are moot,

it must be ascertained (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. See County of Los Angeles v. Davis, 440

U.S. 625 (1979). When such circumstances exist, no relief is available,

and there is no need for a determination of the rights of the parties.

In the matter before us, appellant's complaint (as well as his subsequent

claim of breach) concerns his assigned job duties. Appellant's retirement

is an interim event that has eradicated the effects of his claims.

Further, because of his retirement, there is no reasonable expectation

that the alleged violation will recur. Our review of the record shows

that appellant has not raised a claim of constructive discharge or made a

request for compensatory damages. Therefore, there is no relief available

that can be granted in resolution of his claims.

Accordingly, the agency's request for reconsideration is denied.

The Commission reconsiders the previous decision on its own motion,

vacating the previous decision and finding that appellant's complaint

is properly dismissed as moot. 29 C.F.R. �1614.107(e).

CONCLUSION

After a review of the agency's request for reconsideration, the

appellant's reply thereto, the previous decision, and the entire

record, the Commission finds that the agency's request fails to meet

the criteria of 29 C.F.R. �1614.407(c). It is therefore the decision

of the Commission to deny the agency's request. On its own motion, the

Commission reconsiders the previous decision. The decision in EEOC Appeal

No. 01956552 (September 30, 1996) is VACATED, and appellant's complaint

is dismissed as moot. There is no further right of administrative appeal

on a decision of the Commission on a Request for Reconsideration.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

JAN 4, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat