01977100
11-02-1998
Mahmoud Mohamed, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
Mahmoud Mohamed v. United States Postal Service
01977100
November 2, 1998
Mahmoud Mohamed, )
Appellant, )
) Appeal No. 01977100
v. ) Agency No. IF-946-0062-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region) )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of: (1) Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.; (2) the Age Discrimination in
Employment Act of 1967, 29 U.S.C. �621 et seq.; and (3) the Rehabilitation
Act of 1973, 29 U.S.C.� 791 et seq. The Final Agency Decision (FAD)
was issued on August 25, 1997. The appeal was postmarked September 24,
1997. Accordingly, the appeal is timely, (See 29 C.F.R. � 1614.402(a)),
and is accepted in accordance with EEOC Order 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed Appellant's
complaint on the ground that Appellant's appointment to the Diversity
and Affirmative Action Advisory Committee (DAAC) position renders his
discrimination complaint moot.
BACKGROUND
A review of the record reflects that on June 2, 1997, Appellant filed a
formal complaint alleging unlawful discrimination on the basis of race,
color, religion, national origin, sex age, disability and reprisal.
Appellant further alleged that in response to Appellant's application
for the DAAC position, his supervisor wrote several untrue and negative
statements about Appellant which negatively affected the terms, conditions
or privileges of his employment and caused, inter alia, (1) emotional
pain, panic attacks, tension, sleeplessness, mental anguish, depression,
obsessive thoughts about discrimination, fear of intimidation, anxiety
attacks, anger and fatigue; (2) incurred medical treatment; (3) incurred
medical expenses; and (4) lost sick leave.
On February 21, 1997 Appellant was appointed to the DAAC position.
On August 25, 1997, the agency issued its FAD which dismissed Appellant's
complaint finding that the matter was rendered moot by the fact that
Appellant was appointed to the DAAC position. Appellant thereafter
filed his timely appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal
of a complaint, or portions thereof, when the issues there 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.
Moden v. USPS, EEOC No. 01975088 (June 25, 1998); See also County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). According to the Agency,
Appellant's case is moot since the appointment to the DAAC position
"should eradicate the effects of the alleged violation and there is no
expectation that the alleged violation will recur." (FAD at pg. 2.)
While one anticipated effect of the alleged negative appraisal was the
failure of Appellant to receive an appointment to the DAAC position,
we disagree with the Agency's determination that the appointment to
the DAAC position eradicates all effects of the alleged violation and
accordingly, Appellant's claims are not moot.
First, the negative appraisal remains in Appellant's personnel file and
by its very existence alters the terms, conditions and privileges of
Appellant's employment. Meredith v. Postmaster General, 05890714, 2386/C4
(1989) (a negative recommendation for a detail sufficiently aggrieved the
complainant even without the showing that the employee did not receive the
detail as a result of the negative recommendation); Simeone v. Secretary
of Navy, 05930973, 3955/A2 (1994) ("the mere existence of an allegedly
discriminatory counseling memorandum in the official personnel files of
an employee constitutes a sufficient injury to aggrieve the employee.
It makes no difference that the memorandum has not been relied upon in
making any employment decisions."). See also Wilson v. Secretary of
Veterans Affairs, EEOC Appeal No. 01961159 (March 3, 1997) Since the
negative appraisal remains in Appellant's personnel file, the effects of
the alleged discrimination are not completely eradicated and accordingly,
appellant's claims are not moot.
Moreover, as set forth above, Appellant seeks compensatory damages
which the appointment to the DAAC position does not remedy. An agency
must address the issue of compensatory damages when a complainant
shows objective evidence that he has incurred such damages, and that
the damages are related to the alleged discrimination. Moden v. USPS,
EEOC No. 01975088 (June 25, 1998), citing Jackson v. USPS, EEOC Appeal
No. 01923399 (November 12, 1992) request to reopen denied, EEOC Request
No. 05930306 (February 1, 1993); See also Glover v. USPS, EEOC Appeal
No. 01930696 (December 9, 1993). Appellant has produced to the agency
the following, but not limited to, documentation of alleged compensatory
damage: (1) doctor's visit verification forms which verify days he
had doctors appointments and/or was unable to work; (2) receipts for
the cost of prescriptions; and (3) prescription forms. In addition,
Appellant provided the agency with several names of treating physicians
and therapists, as well as specific incidents of medical treatment which
he asserts was caused by the alleged discrimination. The agency failed
to address Appellant's alleged compensatory damages and accordingly,
Appellant's complaint is not moot. Id.
Therefore, the FAD is REVERSED and we REMAND the allegations of
discrimination to the agency for further processing in accordance with
the ORDER below. The agency shall process Appellant's allegations of
discrimination as well as the damages claimed and relief sought.
ORDER (E1092)
The agency is ORDERED to process Appellant's allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the Appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
within sixty (60) days of the receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
November 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations