Mary Hutton, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 12, 1999
01985341_r (E.E.O.C. Oct. 12, 1999)

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