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