William Shields, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation,) Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01984440 (E.E.O.C. Oct. 28, 1999)

01984440

10-28-1999

William Shields, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation,) Agency.


William Shields v. Department of Transportation

01984440

October 28, 1999

William Shields, )

Appellant, )

)

v. ) Appeal No. 01984440

Rodney E. Slater, ) Agency No. DOT 93-0073R

Secretary, )

Department of Transportation,)

Agency. )

____________________________ )

DECISION

On May 7, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated April 14, 1998, pertaining to

his complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.

The Commission accepts appellant's appeal in accordance with EEOC Order

No. 960, as amended.

In his complaint, appellant alleged that he was subjected to

discrimination on the basis of sex (male) when his supervisor addressed

him in an obscene manner on November 16, 1989.

The agency, adopting the recommended decision of an Administrative Judge,

found no discrimination, or, in the alternative, dismissed appellant's

claim as moot pursuant to 29 C.F.R. �1614.107(e). With regard to

mootness, the AJ/agency found that neither appellant nor his supervisor

are still employed by the agency. The AJ/agency further noted that

"[s]ince the conduct occurred in 1989, well before November 21, 1991, the

effective date of the Civil Rights Act of 1991 which made compensatory

damages available in such cases, no remedy would be available to the

Complainant even if liability had been established."

On appeal, appellant contends that he "is lawfully eligible for

reinstatement . . ." and, therefore, his complaint has not been rendered

moot.

EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a

complaint, or portions thereof, when the issues raised therein are moot.

To determine whether the issues raised in appellant's complaint are moot,

the factfinder must ascertain whether (1) it can be said with assurance

that there is no reasonable expectation that the alleged violation will

recur; and (2) interim relief or events have completely and irrevocably

eradicated the effects of the alleged discrimination. See County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances

exist, no relief is available and no need for a determination of the

rights of the parties is presented.

Here, it can be said with assurance that there is no reasonable

expectation that the alleged discrimination will recur and interim

events have completely and irrevocably eradicated the effects of the

alleged discrimination since neither appellant nor his supervisor are

still employed by the agency.

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of appellant's complaint.<1>

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 28, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Since we are affirming the procedural dismissal of appellant's complaint,

we will not address the propriety of the merit determination.