Kenny D. DeGraffenried, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 25, 1999
01990737 (E.E.O.C. Oct. 25, 1999)

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 On July 23, 1998, the LOW was rescinded via Step 1-A of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In its final decision, the agency found that after the LOW was rescinded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