01A24228
11-05-2002
Albert J. Malloy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Albert J. Malloy v. Department of Veterans Affairs
01A24228
November 5, 2002
.
Albert J. Malloy,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24228
Agency No. 200M-02-103080
DECISION
Complainant filed an appeal with this Commission from an agency decision,
issued on June 28, 2002, 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. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that he suffered
discrimination based on sex and reprisal when on April 18, 2002, two
female co-workers received a $50 award for assisting a bleeding patient,
and he did not. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, complainant filed a formal complaint
dated June 7, 2002.
On June 28, 2002, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency noted that complainant's
complaint was re-characterized as follows:
Was the complainant treated disparately based on reprisal discrimination
when management did not provide an �On the Spot Award� to him in regards
to his care of a veteran.
Evidence:
On April 18, 2002, two co-workers received an �On the Spot Award� in the
amount of $50.00 (after taxes) for assisting a veteran who was bleeding,
however, the Complainant also assisted the veteran but failed to receive
an award.
In dismissing the complaint, the agency explained that during the informal
counseling stage management decided to initiate an award for complainant.
Although the award was processed, complainant has refused to pick it up.
Therefore, according to the agency, there is no remedy nor present harm.
Complainant presents no contentions on appeal. The agency reiterates
the reasoning set forth in is decision and requests that the Commission
affirm the dismissal.
As a preliminary matter, we note that while the agency dismissed
the complaint for failure to state a claim, the complaint is more
appropriately analyzed for mootness. 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 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); 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.
Here, complainant contends that the agency failed to provide him with the
same award that was given to his two co-workers, namely a $81.00 ($50.00
after taxes) "On the Spot" award. The agency states that during the
informal counseling stage, management agreed that complainant deserved
the award and issued him an "On the Spot" award before he filed his
formal complaint. The record contains documentation granting complaint
the cash award, for $81.00, on May 21, 2002. According to the agency,
the complainant refuses to pick up the award. Complainant does not
dispute the agency's assertions. Therefore, we find that the matter
has been rendered moot, by the agency's subsequent actions.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
November 5, 2002
__________________
Date