Toney F. Edwards, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 18, 2000
01990046 (E.E.O.C. Jan. 18, 2000)

01990046

01-18-2000

Toney F. Edwards, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Toney F. Edwards v. Department of the Army

01990046

January 18, 2000

Toney F. Edwards, )

Complainant, )

) Appeal No. 01990046

v. ) Agency No. BODNFO90020105

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

On January 6, 1997, complainant filed a timely appeal with this Commission

from a December 17, 1996 final agency decision dismissing his February 8,

1990 complaint on the grounds of mootness.<1>

Complainant alleged that he was discriminated against when: (a) on

October 24, 1989, the Commanding Officer discriminated against him

by singling him out and directing that he empty his trash, although

no other employees were told to do so; (b) on September 21, 1989,

complainant's supervisor instructed him to crawl through the trash

and no other employees were told to do so; (c) on October 2, 1989, the

Commanding Officer allowed complainant's name to be printed on a trash

can; (d) on October 24, 1989, the Commanding Officer assigned some of

complainant's duties to a military employee with the intention of creating

the impression that complainant was not performing his job properly; (e)

on October 27, 1989, the Commanding Officer made degrading statements

about the complainant to the EEO Counselor when he stated that because

complainant was only a GS-03, he could empty trash cans; and (f) during

the week of October 9, 1989 to October 13, 1989, the Commanding Officer

and complainant's supervisor allowed other supervisors and employees

who were not in complainant's line of supervision to interfere with his

work by allowing them to interrupt him to answer questions about things

about which he had no knowledge and to leave sign-in sheets and other

equipment in complainant's office.

As remedies for the alleged discrimination, complainant requested that he

be provided with written apologies from his supervisor and the Commanding

Officer; that his supervisor and the Commanding Officer stop harassing

him; that the Commanding Officer develop a plan for resolving the trash

problem; that his duties which were assigned to the military employee be

returned to him; that the Commanding Officer provide him with a written

explanation as to why he exhibited a personal interest in complainant's

job; and that his supervisor and the Commanding Officer be disciplined.

Volume 64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. � 1614.107(a)(5)) provides that the agency

shall dismiss a complaint that is moot.<2> To determine whether the

issues raised in complainant's complaint are moot, that is whether

the issues 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

violation. See County of Los Angeles 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.

In dismissing the complaint on mootness grounds, the agency determined

that because the complainant was removed from the agency effective April

17, 1992 the complaint was moot. Complainant does not dispute that he

was removed from the agency. Because complainant no longer works for

the agency, there is no reasonable expectation the alleged violations

will recur and the record does not disclose any alleged unresolved harm

from the alleged violations. Although complainant requested apologies

from the Commanding Officer and his supervisor and requested that

disciplinary actions be taken against the discriminating employees,

such relief is not part of the permissible relief under Title VII.

The Commission therefore finds that the dismissal of the complaint on

the grounds of mootness was proper.

Consistent with the discussion herein, the Commission AFFIRMS the final

agency decision.

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:

January 18, 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

1The complaint, which was resolved in a March 29, 1991 settlement

agreement, was the subject of prior final agency decisions which were

appealed to the Commission on the issue of breach of settlement. The

complaint was subsequently reinstated by the Commission.

2On 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.