01982303
05-11-2000
Harry R. Jacknow, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Harry R. Jacknow v. Department of Transportation
01982303
May 11, 2000
Harry R. Jacknow, )
Appellant, )
)
v. ) Appeal No. 01982303
) Agency No. 4-96-103R
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated January 8,
1998, dismissing complainant's complaint as moot is proper pursuant to
the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)).<1>
In his complaint, complainant alleged discrimination based on sex (male),
age (56), and in reprisal for prior EEO activity when he was subjected
to a hostile work environment from March to June 1996. Specifically,
complainant alleged that mail that was misdelivered to him was not
forwarded to him in a timely fashion; his access to IRM team time and
attendance records was delayed; his access to the DeLorne mapping system
was delayed; he was not officially informed of VISA card training;
he was removed as the official recipient of e-mail to the Great Lakes
Region in regard to AAP-IRM information; and he was denied access to
the IPPS computer system. As relief, complaint requested, inter alia,
$25,000 in compensatory damages and two months administrative leave.
The record indicates that the agency previously issued a decision on July
5, 1996, dismissing the complaint as moot. Complainant appealed and
the Commission, in EEOC Appeal No. 01965753 (June 12, 1997), reversed
the agency's decision, and remanded the complaint back to the agency
for further processing. Specifically, the Commission found that the
complaint was not moot since complainant was contending that he was
still subjected to a hostile work environment, and the agency failed to
address the claim for compensatory damages in its decision.
The record indicates that the agency investigated complainant's claim
for compensatory damages. In his affidavit dated October 15, 1997,
complainant indicated that all of the alleged claims were resolved within
a day or more after he brought the matters to his supervisor and/or agency
management officials. Complainant also indicated that he was subjected
to an on-going hostile work environment, but he did not identify any
specific incident other than the matters alleged in the instant complaint.
As relief, complainant requested $25,000 in compensatory damages; two
months of administrative leave; and reimbursement for all costs and
expenses, including "court costs, attorney costs, court reporter costs,
travel costs, medical costs, and any other cost incurred" by him in the
complaint process. In order to support his claims, complainant submitted
letters from his physicians dated January 18 and 23, 1996, indicating
that he was taking Non-Steroidal Anti-Inflammatory Drugs (NSAIDS) and
he had a history of hypercholesterolemia since 1994. Complainant also
submitted a copy of insurance/medical bills from 1994 to 1996, indicating
that he had been under the care of several physicians since 1994, and
he had been taking NSAIDS and related medicines since 1994/1995.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(e)), requires the agency to dismiss
a complaint which is moot. A complaint is moot and a person is no longer
aggrieved when it can be said with assurance that: (1) interim relief
or events have completely and irrevocably eradicated the effects of the
alleged violation; and (2) there is no reasonable expectation that the
alleged violation will recur. When both conditions are satisfied, neither
party has a legal, cognizable interest in the final determination of the
underlying questions of fact and law. See County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979).
After a review of the record, the Commission finds that the agency's
interim relief with regard to the alleged incidents has rendered the
complaint moot. Specifically, complainant acknowledged that the alleged
matters were satisfactorily resolved within a day or more after he
brought them to the attention of his supervisor or appropriate managerial
officials. With regard to his claim of on-going hostile work environment,
the Commission notes that complainant did not identify any specific
incident other than the alleged incidents raised in the complaint.
With regard to compensatory damages, the Commission notes that they are
awarded for losses and suffering due to the discriminatory acts or conduct
of the agency and include past pecuniary losses, future pecuniary losses,
and nonpecuniary losses that are directly or proximately caused by the
agency's discriminatory conduct. See Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N 915.002 at 8 (July 14, 1992). Pecuniary losses are out-of-pocket
expenses, including medical expenses and other quantifiable costs. Id.
Past pecuniary losses are those losses that are likely to occur after
resolution of a complaint and future pecuniary losses are losses that are
likely to occur after resolution of a complaint. Id. at 8-9. Finally,
nonpecuniary losses are those intangible losses, not subject to precise
quantification, e.g., emotional pain and suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and loss
of health. Id. at 10.
Compensatory damages may be awarded for all pecuniary and nonpecuniary
losses post-dating November 21, 1991, effective date of the Civil Rights
Act of 1991. See Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994).
The complainant must provide objective evidence in support of his/her
claim and proof linking the damages to the alleged discrimination.
See Papas v. USPS, EEOC Appeal No. 01930547 (March 17, 1994); Mims
v. Department of the Navy, EEOC Appeal No. 01933956 (November 24, 1993).
The objective evidence must demonstrate that he/she has been harmed as
a result of the agency's discriminatory action; the extent, nature,
and severity of the harm; and the duration or expected duration of
the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994); see EEOC Notice at 11-12, 14. Objective evidence may
include, inter alia, documents, accompanied by an explanation, showing
actual, out-of-pocket expenses for all medical treatment, psychological
counseling, and any other cost associated with the injury caused by the
agency's action. Id. at 9. A claim for nonpecuniary damages may include
objective evidence such as statements from the complainant, from others,
including family members and coworkers, and from medical professionals.
See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993).
After a review of the record, the Commission finds that complainant failed
to provide objective evidence in support of his claim for compensatory
damages and proof linking the damages to the alleged discrimination.
Specifically, complainant failed to provide any evidence in the record
that his medical conditions and his taking of NSAIDS or any other
medicines, which he was taking at the time of the alleged incidents
and/or thereafter, resulted from the alleged discriminatory incidents.
It appears that complainant was suffering from stress related problems
and was taking a number of medicines, including NSAIDS, prior to the
alleged incidents in 1994 or 1995. Thus, the Commission finds that
complainant is not entitled to compensatory damages. Furthermore, there
is no evidence in the record that complainant incurred any costs or
expenses, i.e., attorney's fees, court costs or any related court costs,
or travel expenses, for which he requested reimbursement. Finally,
complainant provided no evidence in the record that he used any leave
as a result of the alleged incidents.
Accordingly, the agency's decision 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:
May 11, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.