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.