01985341_r
10-12-1999
Mary Hutton, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Mary Hutton, )
Appellant, )
)
v. ) Appeal No. 01985341
) Agency No. 95-4081
Lawrence H. Summers, ) Hearing No. 370-97-X2720
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Upon review, we find that the agency properly dismissed appellant's
complaint on the grounds of mootness, pursuant to 29 C.F.R. �1614.107(e).
Appellant alleged that she was discriminated against when (1) on September
28, 1994, a coworker asked her why the top of her hand was darker than
the inside of her hand and on a subsequent day, the coworker showed
appellant a black doll with braids and asked if the doll offended her;
(2) on October 3, 1994, the Manager yelled at her and asked her to
stop talking about the incident that occurred on September 28, 1994;
(3) on October 17, 1994, management failed to select appellant for a
temporary promotion, as a Tax Examining Assistant in the Automated
Collection Systems Processing Unit; and (4) on October 28, 1994,
management counseled appellant regarding her leave record, although her
leave was acceptable. This complaint was remanded to the agency by an
EEOC Administrative Judge for dismissal on the grounds of mootness.
The Administrative Judge noted with regard to allegation 1 that appellant
confirmed that her supervisor instructed the employee to cease making
racist or other objectionable comments and that in the intervening period
of more than three years, the coworker had not made any racist comments to
appellant. With regard to allegation 3, the Administrative Judge stated
that appellant indicated that she never sought placement in the temporary
promotion and that she is not interested in a temporary promotion to the
Tax Examining Assistant position. Further, the Administrative Judge
found that appellant no longer works under the supervisor who did not
select her for the temporary position. The Administrative Judge noted
that appellant's request that her former supervisor be removed from her
supervisory position is not an available remedy. In its final decision,
the agency adopted the Administrative Judge's reasoning with regard to its
dismissal of allegations 1 and 3. The agency also dismissed allegations
2 and 4 on the grounds of mootness. The agency determined that appellant
no longer works for the manager at issue, and that as a result, there
is no reasonable expectation that the alleged violations will recur.
The agency further determined that the manager's reassignment to a
different unit has completely and irrevocably eradicated the effects of
the alleged violations. We find with respect to the dismissed allegations
that there is no reasonable expectation that the alleged violations will
recur and that interim relief has completely and irrevocably eradicated
the effects of the alleged violation. Accordingly, the final agency
decision dismissing appellant's complaint on the grounds of mootness is
hereby 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. 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 (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:
October 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations