01993818
03-01-2000
Ira D. Patterson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Ira D. Patterson, )
Complainant, )
)
v. ) Appeal No. 01993818
) Agency No. DON 99-47498-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On April 12, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on March 28, 1999,
pertaining to 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> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African American),
color (Black), and reprisal (prior EEO activity) when:
on October 30, 1998, he was issued a memorandum that implemented
procedures to govern his work as a personal EEO representative.
The agency dismissed complainant's complaint pursuant to Volume
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(5)), as moot. Specifically, the agency found that a letter
dated February 18, 1999 rescinded the previous memorandum concerning
complainant's work as an EEO representative. The agency found further
that because the agency rescinded the memo of October 30, 1998, the
effects of the alleged discrimination had been eradicated.
In order to determine whether issues raised in complainant's complaint
remain in dispute, 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 the 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 no need for
a determination of the rights of the parties is presented.
Here, complainant alleged that the agency improperly issued him a
memorandum regarding his duties as an EEO representative. The record
reflects that after complainant provided clarification of his duties and
the times during which he provides EEO counseling, the agency issued
a memorandum on February 18, 1999, rescinding its previous memo. The
agency took no disciplinary action against complainant as a result of
the original memorandum and his duties as an EEO representative were
not reduced or modified in any way. Moreover, there is no indication
that the October 30, 1998 memorandum was made a part of complainant's
personnel file. In that regard, we find that interim relief eradicated
the effects of the alleged discrimination and we find that there is no
reasonable expectation that the alleged violation will recur.
We are not persuaded, therefore, by complainant's arguments on appeal that
the memorandum of February 18, 1999 was an act of reprisal that imposed
restrictions on complainant. Complainant has not provided persuasive
evidence indicating that the letter of February 18, 1999 did anything more
than rescind the October 30, 1998 memorandum. Based on a through review
of the record herein, the agency's decision dismissing complainant's
complaint as moot is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 1, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.