Timothy E. Ryan, Sr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 1999
01990259 (E.E.O.C. Oct. 6, 1999)

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.