01992618
03-01-2000
Jacqueline D. Turner, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Jacqueline D. Turner, )
Complainant, )
)
v. ) Appeal No. 01992618
) Agency No. 98 DCMW240001
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On February 16, 1999, complainant filed a timely appeal of a January 12,
1999 final agency decision, which was received by her on January 16,
1999, dismissing her complaint as moot.<1>
In its final decision, the agency identified the claim of complainant's
September 9, 1998 complaint as whether complainant was discriminated
against when she was harassed by an agency managerial official about
requesting Leave Without Pay (LWOP). The record indicates that on
August 6, 1998, an Assistant Commissary Officer denied complainant's
requested LWOP which was previously approved by a Commissary Officer.
The agency stated that complainant was, subsequently, approved LWOP at
issue rendering the matter moot. The agency also indicated that by
letter dated November 16, 1998, which was received by complainant on
November 23, 1998, the agency requested that complainant provide actual,
objective proof of the damages and prove, with objective evidence, the
damages were connected to the alleged discriminatory action at issue and
was advised of the evidence required to show entitlement to compensatory
damages, including any attorney's fees and costs. The agency noted that
although complainant was given thirty (30) days to provide evidence of
theses damages, she failed to provide any such evidence as of this date.
On appeal, complainant contends that after the August 6, 1998 incident of
harassment on the part of the Assistant Commissary Officer, she became
very upset and depressed. Complainant submits a copy of her family
doctor's note indicating that she went to see the doctor on August 8,
1998.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(5)) provides that prior to a request
for a hearing in a case, the agency shall dismiss an entire complaint
that is moot. The issues raised in a complaint of discrimination are no
longer in dispute (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. County of Los Angeles v. Davis,
440 U.S. 625 (1979).
The complaint involved the denial of LWOP on August 6, 1998. The agency,
undisputed by complainant, stated in its final decision that the subject
LWOP was, subsequently, approved. We note that as relief, complainant
requested, inter alia, compensatory damages and attorney's fees. Upon
review, we find that by letter dated November 16, 1998, the agency
properly requested that complainant provide some objective proof of the
alleged damages incurred, including compensatory damages and attorney's
fees, as well as objective evidence linking those damages to the adverse
action at issue, within 30 days of her receipt of the letter. See Jackson
v. United States Postal Service, EEOC Appeal No. 01923399 (November 12,
1992), request to reopen denied, EEOC Request No. 05930306 (February
1, 1993); Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 10, 1993). The record, uncontested by complainant, indicates
that complainant received this letter on November 23, 1998, but she
did not respond nor did she provide any proof of the alleged damages
in a timely manner. Furthermore, we note that there is no evidence in
the record that complainant was represented by an attorney during the
complaint process. Based on the foregoing, we find that the alleged
claim has been rendered moot. Accordingly, the agency's final decision
is hereby AFFIRMED.
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 Assistant
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.