Ira D. Patterson, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01993818 (E.E.O.C. Mar. 1, 2000)

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dated February 18, 1999 rescinded the previous memorandum concerning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that because the agency rescinded the memo of October 30, 1998, the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.