01a20960_r
03-20-2002
Daniel I. Berkowicz, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Security Service), Agency.
Daniel I. Berkowicz v. Department of Defense (Defense Security Service)
01A20960
March 20, 2002
.
Daniel I. Berkowicz,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Security Service),
Agency.
Appeal No. 01A20960
Agency No. DSS-01-023-SC-L
DECISION
Upon review, the Commission finds that the agency's decision dated
October 30, 2001, dismissing claim (1) in complainant's complaint as
moot is proper pursuant to 29 C.F.R. � 1614.107(a)(5), and dismissing
claim (2) for failure to state a claim and/or as a proposed action is
proper pursuant to 29 C.F.R. �� 1614.107(a)(1) and (5), respectively.
In his complaint, complainant alleged that: (1) on June 8, 2001, he was
denied a religious accommodation when although he requested to make
up eight hours of work (through compensatory time) in lieu of taking
annual leave to attend a religious observance for June 8, 2001, he was
charged with eight hours of annual leave; and (2) on August 10, 2001,
he learned that management will no longer permit anyone in his office
to work compensatory time on Sundays at the office.
With regard to claim (1), the agency, undisputed by complainant, stated in
its decision that the alleged eight hours annual leave was subsequently
restored effective October 6, 2001. Upon review, the Commission finds
that the alleged matter is moot since there is no reasonable expectation
that the alleged violation will recur, and the interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. County of Los Angeles v. Davis, 440 U.S. 625 (1979).
With regard to claim (2), the agency stated that the alleged claim
was premature and failed to state a claim since complainant had not
requested compensatory time on Sundays to make up for time taken for
religious observances and he had not been denied compensatory time.
The Commission agrees with the agency and we find that complainant has not
shown that he has been harmed by the alleged policy at issue in claim (2).
Therefore, we find that claim (2) was properly dismissed for failure to
state a claim pursuant to � 1614.107(a)(1).
Accordingly, the agency's decision to dismiss the complaint 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
March 20, 2002
__________________
Date