01983263
03-16-1999
Susan M. Devine, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Susan M. Devine v. Department of the Treasury
01983263
March 16, 1999
Susan M. Devine, )
Appellant, )
)
v. ) Appeal No. 01983263
) Agency No. 98-3080
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 final agency decision was received by
appellant on March 4, 1998. The appeal was postmarked March 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint as moot.
BACKGROUND
Appellant contacted an EEO counselor on November 3, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when in October 1997, her name was not
included on an organizational chart as one of the four employees who
would be remaining in the Pennsylvania District. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on December
29, 1997, appellant filed a formal complaint alleging that she was the
victim of unlawful employment discrimination on the basis of reprisal
(prior EEO activity).
On March 3, 1998, the agency issued a final decision (FAD) dismissing
appellant's complaint as moot. Specifically, the agency determined
that appellant's name being left off the chart was an error which was
corrected immediately. Appellant's complaint also included a request for
compensatory damages as a result of the agency's alleged discriminatory
conduct. In a letter dated January 16, 1998 the agency requested that
appellant provide, within fifteen (15) days, objective evidence of the
injuries she suffered as well as information regarding how the injures
were related to the actions of the agency. The record indicates that at
appellant's request, on February 2, 1998, she was granted an extension of
time to respond to the agency's inquiry regarding objective evidence.
Appellant failed to provide evidence of the injuries she allegedly
suffered, at the hands of the agency. The FAD, therefore, dismissed
appellant's complaint, pursuant to 29 C.F.R. �1614.107(e), on the grounds
that it was moot, and for failure to cooperate in accordance with 29
C.F.R. �1614.107(g).
ANALYSIS AND FINDINGS
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.
An allegation is moot only if (1) 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
violation. See Henderson v. Department of the Treasury, EEOC Request
No. 05940820 (August 31, 1995)(citing County of Los Angeles v. Davis,
440 U.S. 625 (1979).
The Commission finds that the agency properly dismissed as moot,
appellant's allegations concerning her not being included on the
organizational chart. We find that the agency's act of placing
appellant's name on the organizational chart constituted an interim event
which eradicated the effects of the alleged discrimination. Appellant has
failed to demonstrate that the alleged violation is likely to recur.
Regarding appellant's request for compensatory damages, the Commission
has held that where the agency is put on notice that complainant has
filed a claim for compensatory damages, it is required to request
objective evidence that the complainant has incurred damages and
that the damages are related to the alleged unlawful discrimination.
The record in this case indicates that the agency requested objective
evidence from appellant as a predicate to determining her entitlement
to and the amount of compensatory damages. In response to the agency's
request, appellant failed to provide it with any relevant information.
Appellant has, therefore, failed to produce objective evidence concerning
any damages that she might have suffered or the agency's responsibility
for such damages. In that regard, the Commission is persuaded by the
agency's contentions that interim events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los
Angeles, supra. We also find that appellant has not offered persuasive
evidence to support her contention that the instant complaint is part of
a continuing violation against her. Since we are affirming the agency's
dismissal of appellant's complaint as moot, we will not address the
agency's alternative grounds for dismissal, i.e., failure to cooperate.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
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 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations