01a03571
07-26-2000
Mary L. Carter, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Mary L. Carter v. Department of the Army
01A03571
07-26-00
.
Mary L. Carter,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03571
Agency No. AUGEFO9911J0220
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision 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.<1> The final agency decision was dated March
15, 2000, and received by complainant on March 20, 2000. The appeal
was postmarked on April 17, 2000. Accordingly, the appeal is timely
(see 29 C.F.R. � 1614.402(a)), and is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint as moot.
BACKGROUND
Complainant filed a formal complaint on February 3, 2000, alleging
discrimination on the bases of race (Black) and sex (female) when she was
subjected to hostile working conditions at the agency facility to which
she was assigned. Her complaint listed a number of working conditions
she claimed were discriminatory, and as part of her requested relief,
she asked to be moved to a different agency facility, and to have no
further contact with the supervisor named in her complaint as the source
of the discrimination. Complainant did not request compensatory damages.
In its final agency decision (FAD), the agency dismissed the complaint as
moot, finding that because complainant had been reassigned to a different
agency facility, as she requested, the issues regarding her working
conditions had been resolved. The new facility was in the same general
geographic area as complainant's original facility. This appeal followed.
Complainant argued on appeal that her complaint was not moot because she
had also originally requested as relief in her complaint the ability to
work from home in a �flexi-place� arrangement �a few days a week.� She
claimed that because her daily commute was two hours each way before her
reassignment and was now anywhere between three and four hours each way
after the reassignment, her working conditions were still unacceptable.
She argued that this precluded her complaint from being moot.
ANALYSIS AND FINDINGS
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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. In this
case, the complainant was transferred to a different agency facility at
her request, with no loss in pay grade or change in position, thereby
effectively ending the possibility of future violations.
Furthermore, with respect to complainant's argument on appeal that her
complaint is not moot because she was not granted her �flexi-place�
request, which would have allowed her to work at home a �few� or �at
least 3" days a week, we find that argument unconvincing. A review of
the record reveals that in the EEO counseling stage, attempts were made to
resolve complainant's request to be granted �flexi-place.� According to
the record, complainant's agency does allow the use of �flexi-place� but
leaves it up to each Division Chief as to whether to institute the use
of �flexi-place� in their respective division. Complainant's Division
Chief has chosen not to institute �flexi-place� in his division due to
the nature of the work performed and therefore, complainant's request
to be allowed the use of �flexi-place� was turned down for that reason.
We find that because no employee in complainant's division was entitled
to the use of �flexi-place,� it was not a remedy to which she would have
been entitled, and therefore does not preclude the complaint from being
rendered moot by her reassignment to a different agency facility.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
__07-26-00________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.