01990259
10-06-1999
Timothy E. Ryan, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Timothy E. Ryan, Sr. v. United States Postal Service
01990259
October 6, 1999
Timothy E. Ryan, Sr., )
Appellant, )
) Appeal No. 01990259
v. ) Agency Nos. 1-A-126-1066-96
) 1-A-126-1080-96
William J. Henderson, ) 1-A-126-0016-97
Postmaster General, ) Hearing Nos. 160-97-8543X
United States Postal Service, ) 160-97-8699X
Agency. )
______________________________)
DECISION
In a formal complaint dated June 17, 1996, Agency Number 1-A-126-1066-96
(hereinafter C1), appellant alleged that he was subjected to
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. and �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. on the bases of physical
disability (hearing impairment) and in reprisal for prior EEO activity
when:
On April 25, 1996, appellant was not allowed to bring his kids to a
parent/kid day;
Management refused to install a TDD in appellant's pay location; and
No TDD has been installed in the EEO office or in the Employee Assistance
Program (EAP) office.
In a notice of processing dated August 13, 1996, the agency accepted
appellant's allegations for investigation. Following the investigation,
appellant requested a hearing before an EEOC Administrative Judge (AJ)
on April 22, 1997.
In a separate formal complaint dated November 14, 1996, Agency Number
1-A-126-1080-96 (hereinafter C2), appellant alleged discrimination when:
Appellant was not allowed to talk with co-workers while others (who can
hear) were authorized to do so;
Appellant was forced to read the supervisor's lips when the supervisor
refused to "write it down when asked;"
Appellant's conversation with an EAP counselor was interrupted by the
Acting MDO asking who was on the phone, and taking appellant's privacy
away; and
On August 1, 1998, appellant's request for a meeting with the Plant
Manager was denied.
In a notice of processing dated December 2, 1996, the agency accepted
appellant's complaint for investigation. Following the investigation,
appellant requested a hearing before an AJ on July 7, 1997.
On July 17, 1998, the agency filed a motion to remand C1 and C2 for
dismissal because, pursuant to appellant's request, appellant was
being transferred to a different work location. In an order dated
August 10, 1998, the AJ remanded both C1 and C2 for a determination
of whether appellant's allegations were rendered moot by the transfer.
In his order, the AJ noted that appellant failed to request compensatory
damages in either C1 or C2.
In a third formal complaint, Agency Number 1-A-126-0016-97 (hereinafter
C3), dated January 16, 1997, appellant alleged discrimination when:
The EAP Offices nationwide do not provide TDD, which denies privacy and
places fees on deaf employees;
On September 5, 1996, the Labor Relations Manager never showed up for an
8:00 a.m. meeting to discuss the rights of the deaf to see the Postmaster,
nor did the Labor Relations Manager try to reschedule the meeting;
On October 14, 1996, a potentially violent situation occurred and
management failed to provide a meeting to resolve the problem, nor did
management provide a certified interpreter to assist in the situation;
and
The EEO Counselor stated that he would provide a meeting with an
interpreter and those involved in the potentially violent incident along
with the Labor Relations Manager and a specialist, yet the counselor
failed to provide such a meeting or to contact appellant concerning
the matter.
In a FAD dated February 11, 1997, the agency dismissed C3 pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
On appeal, the Commission reversed the agency's decision because the
agency improperly fragmented the allegations in appellant's harassment
complaint, and remanded the allegations for investigation. See Ryan
v. United States Postal Service, EEOC Appeal No. 01973238 (Jan. 12, 1998).
The investigation was completed on April 20, 1998.
In a FAD dated September 10, 1998, which appellant timely appealed on
October 15, 1998, the agency dismissed C1, C2, and C3. Therein, the
agency found that, pursuant to EEOC Regulation 29 C.F.R. �1614.107(e),
the allegations which arose in, and were specific to, appellant's former
work location were rendered moot by appellant's transfer. The agency
also found that, pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), the
allegations concerning meetings not being held failed to state a claim.
Finally, the agency found that to the extent appellant alleged harm
to a class of hearing impaired employees, the agency EEO would provide
counseling to interested parties, and provide them with an opportunity
to file an EEO complaint.
On appeal, appellant notes that the agency failed to articulate
with specificity the grounds on which each allegation was dismissed.
With regard to C3, appellant argues that the agency should be subject
to an adverse inference for attempting to dismiss allegations on the
same grounds that the Commission reversed in EEOC Appeal No. 01973238.
Regarding allegation (8), appellant notes that he will face the same
problem regardless of where he transfers, given the national scope of
the allegation. Further, appellant argues that the new TTY numbers do
not give deaf employees equal access to services, and that appellant's
losses should be reimbursed. Appellant contends that if he was informed
of the option to file a class complaint on behalf of all hearing impaired
employees at his former work location, appellant would have done so.
Further, appellant asserts that another employee has agreed to "take
over" the issues raised in C1 and C2 as the representative of a class
complaint.
In response, the agency argues that appellant's attempt to redefine his
moot allegations as a part of a class complaint is improper.<1> The
agency contends that allegations (1) - (6) were specific to appellant's
former work location, and that appellant's relocation obviously renders
them moot. Further, the agency argues that allegation (8) also is moot
because the agency recently established a national 1-800 TTY line for
EAP employees. Finally, the agency asserts that because appellant has
failed to provide "objective evidence" that he incurred compensatory
damages, and because the agency made "good faith efforts" to accommodate
his disabilities, appellant is not entitled to any additional relief.
The agency contends that it dismissed allegations (7), (9), (10), and
(11) for failure to state a claim because meetings with management are
granted at management's discretion, and are not a term, condition, or
privilege of employment. Regarding allegation (11), the agency asserts
that appellant attempted to obtain a meeting that the supervisor deemed
unnecessary through his EEO Counselor, but not within the counseling
process. The agency also asserts that allegations (7), (9), (10), and
(11) do not state a claim of harassment, because they only involve four
isolated incidents of management refusing to meet with appellant.
In the formal complaints for C1 and C2, appellant does not request
compensatory damages. In C3, however, appellant requested "payment for
all costs [the hearing impaired] have had to pay . . ." stemming from
allegation (8). The record does not include any letter, memorandum,
or other documentation requesting that appellant provide evidence to
support his compensatory damages claim in C3.
Although the agency dismissed allegations (7), (9), (10), and (11)
for failure to state a claim, the Commission finds these allegations
are more properly analyzed for whether they have been rendered moot.
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 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.
The Commission finds that allegations (1) - (7) and (9) - (11)
specifically relate to appellant's former work location. The record
reveals that appellant has transferred to a different work location,
and no longer has contact with the responsible agency officials from
appellant's former work location. With the exception of allegation
(8), there is no reasonable expectation that appellant will continue to
suffer harm in his new work location.<2> Appellant failed to request
compensatory damages, except for specific fees imposed by allegation (8)
of C3. Further, even if appellant filed a class complaint on behalf of
all hearing impaired workers at appellant's former work location, his
involvement in the class action would be rendered moot by his transfer.
Accordingly, the agency properly found that allegations (1) - (7) and
(9) - (11) were rendered moot by appellant's transfer.
Regarding the mootness of allegation (8), however, the Commission has
held that an agency must address the issue of compensatory damages when
a complainant shows objective evidence that he has incurred compensatory
damages, and that the damages are related to the alleged discrimination.
See Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (March 18, 1999); Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (Nov. 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (Feb. 1, 1993).
The record reveals that appellant requested damages, i.e., the repayment
of fees, in allegation (8). Although the agency argues that appellant
failed to submit objective evidence of damages incurred, the record does
not reflect that the agency ever requested that appellant provide any
objective evidence of damages. Because appellant requested compensatory
damages, the agency should have requested that appellant provide some
objective proof of the alleged damages incurred, as well as objective
evidence linking those damages to the adverse actions at issue. See
Benton v. Department of Defense, EEOC Appeal No. 01932422 (Dec. 10, 1993).
Accordingly, the agency's dismissal of allegation (8) was improper.
CONCLUSION
Accordingly, the agency's dismissal of allegations (1), (2), (3), (4),
(5), (6), (7), (9), (10), and (11) is AFFIRMED. However, the agency's
dismissal of allegation (8) is REVERSED, and allegation (8) is REMANDED
for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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
without a hearing, the agency shall issue a final decision within sixty
(60) days of 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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:
October 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency also notes that the class representative for the issues
raised in C1 and C2 has withdrawn his complaint.
2Concerning allegation (8), appellant correctly notes that he will be
harmed by the lack of an effective 1-800 TDD number regardless of where
he works. Appellant also contends that the TTY number currently in
place does not grant appellant equal or adequate access to the EAP as
would a TDD number.