01990597
08-26-1999
Edmundo C. Aguilar, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edmundo C. Aguilar v. United States Postal Service
01990597
August 26, 1999
Edmundo C. Aguilar, )
Appellant, )
)
v. ) Appeal No. 01990597
) Agency No. 4H-370-0139-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final decision was received by appellant
on October 6, 1998. The appeal was postmarked October 26, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record reflects that during the period at issue in the instant
complaint, appellant was employed as a Part-Time Flexible City Carrier
in Nashville, Tennessee.
On March 20, 1998, appellant initiated contact with an EEO Counselor,
alleging that he was harassed by his Supervisor. As relief, appellant
requested that he retain regular employee status and that he be reassigned
to either Fairfield, California, or Napa, California. Informal efforts
to resolve appellant's concerns were unsuccessful.
On June 3, 1998, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the bases of
race, color, national origin, and reprisal. Appellant's complaint
was comprised of the matters for which he underwent EEO counseling.
As corrective action, appellant requested that he regain regular employee
status from the date the complaint was filed; transfer to either Napa,
Fairfield, or Vacaville, California; payment for holiday benefits from
the date the complaint was filed; and payment for "all assumable overtime
hours worked" from the date the complaint was filed.
On October 2, 1998, the agency issued a final decision. Therein, the
agency noted that appellant alleged in his formal complaint that he had
been subjected to harassment and a hostile work environment as reflected
in the following incidents:
1. On March 20, 1998, he was instructed to complete P.S. Form 3996 for
overtime.
2. On March 25, 1998, his Supervisor made racial comments, and called
him "Mr. Ed."
3. On March 26, March 27, and March 30, 1998, he was given a take off
for an unfamiliar route, and a duplicate P.S. Form 3996 was not provided.
4. On March 30, 1998, his Supervisor raised her voice when appellant
told her that he could not deliver a take off.
5. On April 6, 1998, his Supervisor watched him on the route and yelled
at him.
The agency dismissed appellant's complaint on the grounds of mootness.
Specifically, the agency found that appellant received a transfer to an
agency facility in Berkeley, California on June 6, 1998.
On appeal, appellant argues that he experienced emotional and mental
distress as a result of the purported harassment. Appellant further
argues that the transfer to California did not completely eradicate
the effects of discrimination. Appellant noted that the reason for
his transfer to California was "purely family" and was predicated upon
"social and economic" factors.
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,
it must be ascertained (1) if it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur, and
(2) if the interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
The agency found that appellant's allegations were moot because appellant
was transferred from the Tennessee facility where purported incidents of
harassment occurred, to a facility in Berkeley, California. However,
on appeal, appellant argues that he suffers from emotional and mental
distress as a result of the alleged incidents of harassment raised in his
formal complaint. The Commission determines that this is tantamount to a
claim for compensatory damages. The Commission has held that such claims,
even if raised for the first time on appeal, preclude a dismissal of a
complaint as moot, when not addressed. See Simpkins v. USPS, EEOC Request
No. 05940887 (September 28, 1995); Kyriazi v. Department of Defense,
EEOC Request No. 05930086 (March 4, 1994). The potential availability of
compensatory damages in this case precludes a finding of mootness, because
there may be some additional relief to which appellant is entitled.
Accordingly, the agency's decision to dismiss appellant complaint on the
grounds of mootness is REVERSED. Appellant's complaint is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded 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
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 (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:
August 26, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations