James H. Hampton, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionNov 1, 1999
01994481 (E.E.O.C. Nov. 1, 1999)

01994481

11-01-1999

James H. Hampton, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


James H. Hampton, )

Appellant, )

)

v. )

)

William S. Cohen, ) Appeal No. 01994481

Secretary, ) Agency No. DFAS-IN-N4FP-99-009

Department of Defense, )

(Defense Finance & Accounting )

Service), )

Agency. )

______________________________)

DECISION

On May 8, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated April 26, 1999, dismissing a

portion of his complaint for failure to state a claim. The Commission

accepts the appeal in accordance with EEOC Order No. 960, as amended.

Appellant contacted the EEO office regarding allegations of discrimination

based on sex (male), age (d.o.b. August 1931), physical disability

(10% VA; 80% spinal), mental disability (prescription drug effect),

and reprisal. Informal efforts to resolve all of appellant's concerns

were unsuccessful. Accordingly, appellant filed a formal complaint

dated December 18, 1998.

In a letter dated December 23, 1998, the agency initially defined the

allegation as follows:

Appellant was not selected for the temporary position Accounting

Technician, GS-525-5 target 6, Vacancy Announcement RI-502-98; and,

Appellant was not referred for the temporary position Accounting

Technician, GS0525-6 target 7, Vacancy Announcement RI-503-98.

On April 23, 1999, the agency amended its prior notice and defined the

sole issue to be investigated as allegation (1). Appellant was notified

to contact the agency within seven calendar days if he believed the

issue was not correctly identified.

Three days later, the agency issued a FAD dismissing allegation (2)

for failure to state a claim. Specifically, the agency indicated that

appellant was initially not referred due to an administrative error,

but the error had been corrected. The FAD stated that since appellant

was no longer aggrieved, he failed to state a claim.

Preliminarily, the Commission agrees with the agency's statement

on appeal that the more appropriate analysis here is for mootness.

EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall

dismiss a complaint that is moot. To determine whether the issues raised

in appellant'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 violations. See County of Los Angles 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.

A review of the record reveals that interim relief has been afforded

to appellant; his name was added to the referral list for job vacancy

announcement number RI-503-98. Moreover, appellant has not requested

compensatory damages. Therefore, the Commission finds that allegation

(2) is moot. Accordingly, the agency's decision to dismiss allegation

(2) is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

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:

November 1, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations