01992907
02-03-2000
John P. Gilvin, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
John P. Gilvin, )
Complainant, )
)
v. ) Appeal No. 01992907
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
We find that the agency's January 19, 1999 decision dismissing the
complaint on the grounds of mootness and failure to state a claim is
proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)
and (5).<1>
The record shows that Complainant filed a formal complaint of
discrimination alleging that he had been discriminated against on the
bases of mental disability, and reprisal when: (1) from May 12, 1998 to
June 22, 1998, he was not paid for night differential when he was placed
on administrative leave; and, (2) on June 24, 1998, in a congressional
inquiry he was misrepresented of facts and evidence. The record shows
that by memorandum dated August 25, 1998, the Team Leader authorized the
shift differential payment to Complainant. According to the memorandum,
the payment would be issued on September 8, 1998.
The agency issued a final decision dismissing claim (1) on the basis
of mootness after finding that Complainant had received the night
differential payment. Claim (2) was dismissed on the grounds of failure
to state a claim after the agency found that Complainant had failed
to show that he had been aggrieved by the alleged incident. No new
contentions have been raised on appeal.
EEOC Regulations provide in relevant part that an agency shall dismiss
a complaint or portion of a complaint that is moot. The United States
Supreme Court has held that a discrimination complaint is moot when:
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) 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, 631 (1979).
Under such circumstances, no relief is available and thus there is no
need for a determination of the rights of the parties. Id. A review
of the record shows that interim relief, the payment of the shift
differential, has completely and irrevocably eradicated the effects of
the alleged violation. Moreover, the agency has been able to show that
there is no reasonable expectation that the alleged violation will recur.
Accordingly, the dismissal of claim (1) was proper.
We also agree with the dismissal of claim (2). A review of the record
shows that Complainant failed to show that the alleged discriminatory
event caused a harm to the terms, conditions or privileges of his
employment. Accordingly, the final agency decision is 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:
February 3, 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
1 On 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.