01a41725_r
04-30-2004
Nathaniel Andrews Jr, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Nathaniel Andrews Jr v. Department of the Army
01A41725
April 30, 2004
.
Nathaniel Andrews Jr,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A41725
Agency No. ARROCK03JUL0058
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
On July 29, 2003, complainant contacted the EEO office claiming that he
was discriminated on the bases of race, sex, and color. Informal efforts
to resolve complainant's concerns were unsuccessful. On September
14, 2003, complainant filed a formal complaint. A fair reading of the
pre-complaint documents and the formal complaint reflect that complainant
raised two claims:
Complainant was discriminated against when he was not selected for two
GS-13 Senior System Technical Representative (SSTR) positions, one at
Fort Hood and the other at Fort McPherson;
Complainant was discriminated against when on June 27, 2003, he was
denied his request to relocate to Fort Gordon, GA.
As a remedy, complainant requested promotion to a GS-13 position and
relocation to Fort Gordon, Georgia.
On December 3, 2003, the agency issued a decision dismissing the
complaint. Specifically, the agency dismissed claim (1) for untimely
EEO Counselor contact. The agency determined complainant's initial
EEO contact of July 29, 2003, was untimely regarding claim (1), which
occurred on March 10, 2003. The agency dismissed claim (2) on the grounds
of mootness finding that complainant was relocated to Fort Gordon on
September 24, 2003, until his voluntarily retirement on October 31, 2003.
The agency also dismissed claim (2) for failure to state a claim finding
that complainant was not aggrieved because there was no vacant position
at Fort Gordon at the time complainant requested the relocation.
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record discloses that complainant learned by electronic mail
on March 10, 2003, of his non-selection for the positions of Senior
System Technical Representative, but that complainant did not initiate
contact with an EEO Counselor until July 29, 2003, which is beyond the
forty-five-day limitation period. Complainant did not present adequate
justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending
the limitation period beyond forty-five days. Therefore, the Commission
finds that the agency's dismissal of claim (1) for untimely EEO Counselor
contact was proper.
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the fact finder 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); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
The agency found, and complainant did not dispute, that complainant was
provided the opportunity to relocate to Fort Gordon to perform duties from
September 24, 2003 through October 31, 2003. Complainant also does not
dispute that he voluntarily retired from the federal service effective
October 31, 2003. Complainant's assignment to Fort Gordon and his
subsequent retirement, constitutes an interim event that completely and
irrevocably eradicated the effects of the alleged discriminatory denial
of complainant's request for relocation to Fort Gordon at issue in claim
(2). Complainant has not shown that the alleged incident is reasonably
likely to recur or that he still somehow aggrieved. The Commission notes,
moreover, that complainant has not requested compensatory damages as
a remedy. Therefore, we find that the agency properly dismissed claim
(2) as moot.<1>
Accordingly, the agency's dismissal of the two claims raised in the
instant complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 30, 2004
__________________
Date
1 Because we are affirming the agency's
dismissal of claim (2) on the grounds of mootness, we will not address
the agency's alternative ground for dismissal, i.e., that the matter
fail to state a claim.