01985628
04-17-2000
Wendy P. Button, Complainant, v. Gil Coronado, Director, Selective Service System, Agency.
Wendy P. Button v. Selective Service System
01985628
April 17, 2000
Wendy P. Button, )
Complainant, )
)
v. ) Appeal No. 01985628
Gil Coronado, )
Director, )
Selective Service System, )
Agency. )
______________________________)
DECISION
Upon review, we find that the agency properly dismissed complainant's
complaint.<1> In her March 3, 1998 complaint, complainant alleged
that she was discriminated against when: (1) the agency improperly
processed her previous EEO complaints in 1997; (2) on October 31,
1997, she was issued a memorandum removing her as an EEO Counselor; (3)
on November 18, 1997, she received a low appraisal rating; and (4) the
agency continuously failed to properly process her complaints/grievances.
Upon review, we find that although the agency dismissed claims (1) and
(4) for failure to state a claim and/or as moot, they are more properly
dismissed for alleging dissatisfaction with the processing of a previously
filed complaint. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)). In addition,
it is noted that complainant failed to explain or specify her grievances
and/or how her grievances were improperly processed by the agency.
With regard to claim (2), the agency stated in its final decision that
on December 1, 1997, a responsible agency official subsequently issued
complainant a memorandum explaining that his earlier October 31, 1997
memorandum inadvertently implied that complainant was a former EEO
Counselor and that she remained as an EEO Counselor. Thus, we find
that claim (2) failed to state a claim.<2> See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1).
Upon review, we find that although the agency dismissed claim (3) for
stating the same claim that is pending before the agency, it is more
properly dismissed as moot. See 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)).
The record indicates that on January 7, 1998, the alleged appraisal rating
of "Fully Successful" was, subsequently, changed to "Outstanding," the
highest rating available at the agency. Upon review, we find that there
is no reasonable expectation that the alleged violation will recur, and
the interim relief has completely and irrevocably eradicated the effects
of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625
(1979). Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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:
April 17, 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
1On 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.
2In view of the affirmance of the dismissal of complainant's claim (2)
for failure to state a claim, we need not address the agency's alternative
grounds for dismissal, i.e., as moot.