01982815_r
03-18-1999
John T. Battle, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
John T. Battle, Jr., )
Appellant, )
)
v. ) Appeal No. 01982815
) Agency No. ANBKFO9802I0050
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On February 20, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on January 22, 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., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of race (African American), age (over 40), and in reprisal for prior EEO
activity when management refused to provide information and documents
concerning GS-13 promotions in his division.
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(e), as moot, because appellant received a copy of the
information he requested with the agency Counselor's Report.
On June 2, 1997, appellant sent a letter to the agency requesting the
names of all GS-12 engineers promoted in his division within the last
two years. His division chief denied his request by memorandum dated
June 9, 1997, and appellant sought counseling on the matter.
Appellant filed his formal complaint on August 14, 1998, which the agency
acknowledged by letter dated December 5, 1997. In this December 5,
1997 letter, the agency also defined the issue of appellant's complaint
as �management refused to provide [appellant] information/documents
concerning GS-13 promotions in the division.� The letter requested that
appellant contact agency EEO �immediately� if the allegation was not
correctly defined. The record does not indicate that appellant ever
questioned the agency's definition of his complaint.
The Counselor's Report, completed December 17, 1997, provides extensive
data on hiring and promotion information for the division in which
appellant works. The agency, in its FAD, found that appellant received
a copy of this information.
Other than filing his appeal, appellant does not provide any additional
arguments or evidence on appeal.
In response to appellant's appeal, the agency notes that appellant did
not request compensatory damages. The agency also argues that although
appellant's requested relief was for a promotion to GS-13, the allegations
in his complaint did not include non-selection, and therefore he could
not receive such relief under the allegation that he raised.
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.
The Commission finds that the Counselor's Report contained the information
that appellant requested. Appellant's receipt of the promotion
information eradicated the effects of the alleged discrimination.
Further, the record does not indicate any reasonable expectation that
the alleged violation will recur.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint as
moot is 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. 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:
March 18, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations