01990737
10-25-1999
Kenny D. DeGraffenried, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenny D. DeGraffenried v. United States Postal Service
01990737
October 25, 1999
Kenny D. DeGraffenried, )
Appellant, )
) Appeal No. 01990737
v. ) Agency No. 1B141002998
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his 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. The appeal is accepted in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
allegation on the grounds that the matter at issue therein is now moot.
BACKGROUND
The appellant filed a formal complaint on July 21, 1998, alleging
discrimination on the bases of race (Black) and sex (male) when on May 26,
1998, appellant was issued a Letter of Warning (LOW) for unauthorized
absence from his work assignment and failure to follow supervisory
instructions. On July 23, 1998, the LOW was rescinded via Step 1-A of
the grievance process. Subsequently, on September 21, 1998, appellant
requested compensatory damages in the amount of $5,000.
In its final decision, the agency found that after the LOW was rescinded
there was no reasonable expectation that the alleged action would recur
and the recission eradicated the effects of the alleged discrimination.
Then the agency reviewed the appellant's claim to compensatory damages.
It concluded that the complainant failed to support his claim for damages
for mental anguish and stress. Accordingly, the agency dismissed
the complaint upon concluding that it was moot in accordance with 29
C.F.R. �1614.107(e). This appeal followed.
ANALYSIS AND FINDINGS
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
she has incurred compensatory damages and that the damages are related
to the alleged discrimination. Jackson v. U.S. Postal Service, EEOC
Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993).
Where a timely claim for compensatory damages is made, the agency cannot
dismiss the complaint for mootness, unless it can show that complaint
is not entitled to damages. Ellicker v. Department of Agriculture,
EEOC Request No. 05931079 (September 22, 1994). The evidence in the
file indicates that the agency requested that the appellant provide
information relating to the injury incurred and the cause of the harm
in order to substantiate appellant's claim for compensatory damages.
The appellant responded with a narrative requesting $5,000.00 for
intentional infliction of emotional stress relating to his experiencing
anxiety, sleep irregularities, depression, and embarrassment. Appellant
also indicated that he did not incur any medical expenses. The appellant's
general response to the agency's request for specific information does
not provide sufficient proof that damages were incurred nor provide
sufficient proof linking the damages to the alleged discriminatory act.
Based on the foregoing, the Commission finds that the appellant is not
entitled to compensatory damages.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
The evidence in the file indicates that the LOW was rescinded via a Step
1-A of the grievance process and will never be cited in any subsequent
disciplinary action that may be issued. Because there is no evidence that
the alleged violation will recur; and the grievance process eradicated
the effects of the alleged discrimination, the Commission finds that
the appellant's complaint is moot.
CONCLUSION
Accordingly, the decision of the agency was proper and is, therefore,
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 25, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat