01A21764_r
02-24-2003
Barbara A. Reed, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Barbara A. Reed v. U.S. Department of Agriculture
01A21764
February 24, 2003
.
Barbara A. Reed,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A21764
Agency Nos. 010042 & 010217
Hearing No. 100-A1-7578X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dated March 12, 2002, dismissing her complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In her complaints, complainant claimed that the agency retaliated
against her because of her prior EEO activity as evidenced by the
following incidents:
On September 29, 2000, the Office of Human Resources required complainant
to submit additional documentation to support her request to participate
in the Leave Donor Program;
The Office of Human Resources gathered false and injurious information
about complainant, as evidenced by a report of a meeting on April 1,
1999; and
The agency maintained records of confidential information, which proved
detrimental to complainant's career.
The agency accepted the complaint for investigation, and subsequently
forwarded it to an EEOC Administrative Judge (AJ) for a hearing.
In a �Pre-hearing Order� dated December 27, 2001, the AJ determined
that both parties submitted proposals for full relief under Poirrier
v. Department of Veterans Affairs, EEOC Appeal No. 01933308 (May 5,
1994), and certified that full relief would consist of the following:
80 hours of sick leave; and
Reasonable attorney's fees as determined after submission to the agency of
an appropriate petition under EEOC Regulations at 29 C.F.R. � 1614.501(e).
Furthermore, the AJ declined to award compensatory damages as a
measure of full relief, because despite two opportunities to do so,
complainant failed to submit evidence to establish her entitlement to
compensatory damages. Upon receiving the agency's offer of full relief,
dated January 7, 2001, wherein the agency unconditionally promised
to provide complainant with the above referenced award, the AJ issued
another Order dated January 11, 2002, finding that the complainants were
rendered moot under Poirrier. This Order also instructed the agency to
take final action within 40 days of its receipt of the Order, and set
forth complainant's appeal rights.
On February 5, 2002, after the above referenced 40-day period, complainant
filed the instant appeal, arguing that the agency failed to comply with
the AJ's order by failing to issue a final order within the referenced
time frame. In a subsequent appeal statement, dated February 28, 2002,
complainant also argued that her proposed offer of full relief, which
she presented to the AJ, included a request for compensatory damages for
emotional pain and suffering, apparently suggesting that the AJ erred in
excluding it from the offer of full relief. Complainant also claimed
AJ bias noting that she did not exclude certain agency officials from
the proceedings, gave the agency a second chance to submit a proposal
of full relief, and otherwise engaged in actions which assisted the
agency in its conspiracy to defeat complainant's EEO complaints.
Complainant requests a hearing.
Subsequent to complainant's appeal, the agency issued its final order,
dated March 12, 2002, wherein it implemented the AJ's Order, and dismissed
the captioned complaints as moot.
On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Under these revisions, the Commission eliminated the dismissal
grounds of failure to accept a certified offer of full relief from
the regulations. Therefore, agencies may no longer dismiss complaints
due to a complainant's failure to accept a certified offer of full
relief. Furthermore, in addressing the issue of non-compliance with a
Poirrier offer of full relief, the Commission held that this regulatory
change results in eliminating the elements of an offer of full relief
from "any acceptable analytical framework." See Tripicchio v. Department
of Justice,
EEOC Appeal No. 01993307 (November 28, 2001); (request for reconsideration
denied, EEOC Request No. 05A20432 (May 17, 2002).
We find that the "Offer of Full Relief" brokered by the AJ constitutes
a Poirrier Offer of Full Relief pursuant to Poirrier v. Department of
Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994). That is, we
find that the record reflects that the agency's Offer of Full Relief
in this case contained all of the relief specified by the AJ during
the pre-hearing settlement conference. We further note that Poirrier
requires dismissal on the grounds of mootness.
Therefore, because the new regulations have, in effect, eliminated the
"offer of full relief," as a means of resolving EEO complaints, the issue
of compliance with the agency's �Poirrier offer� of full relief becomes
an issue of whether the captioned complaint was properly dismissed
on the grounds of mootness pursuant to 29 C.F.R. � 1614.107(a)(5).
See Miller v. Department of Treasury, EEOC Appeal No. 01993839 (February
14, 2002); Nicholson v. U.S. Postal Service, EEOC Appeal No. 01A22195
(July 24, 2002).
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant'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).
Additionally, in assessing whether a complaint has been rendered
moot, 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. See Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den.,
EEOC Request No. 05930306 (February 1, 1993).
Regarding claim 1, we find that there is no dispute between the parties
that complainant lost 80 hours of sick leave because of her inability to
participate in the Leave Donor Program, and that restoration of this leave
would constitute one measure of full relief for this claim. Moreover,
the instant offer of full relief provides complainant with attorney's
fees, further �eradicating� the harm suffered by complainant regarding
this matter. Furthermore, we find that the AJ properly determined that
complainant is not entitled to compensatory damages as part of full relief
for this claim. Specifically, we find that although complainant provided
a description of her emotional suffering in the second proposal for full
relief she submitted to the AJ, it was unsupported by an affidavit from
complainant, or any pertinent documentary evidence, as twice requested by
the AJ. Additionally, we find no evidence to suggest that this matter is
likely to recur, and we find that the remedies provided by the agency in
the offer of full relief are likely to constitute an adequate deterrent
in this case. Accordingly, we find that the offer of full relief in
this case renders claim 1 moot.
Regarding claim 2, we find that the document that complainant refers to,
memorializes a formal discussion regarding management concerns that a
�few employees� are abusing resources in pursuit of �labor and employee
relations,� to include absences without permission or explanation, and
setting up unauthorized details. Complainant apparently submits this
as evidence that she was �targeted� as one of these employees, and argues
that the information is inaccurate and part of a conspiracy to block her
career success. Notwithstanding complainant's contentions, we find that
the document at issue does not name complainant, and she submits no other
evidence to show that the information in the report is erroneous, or to
otherwise demonstrate that she is the victim of the claimed conspiracy.
Moreover, complainant herself provided this document to the EEO Counselor,
and does not claim that it is maintained as part of her personal personnel
records, nor does she claim a breach of confidentiality regarding the
instant complaint file wherein a copy now resides.
Accordingly, given that the offer of full relief provides complainant
with attorney's fees and is likely to act as a deterrent, and given
our determination above that complainant is not entitled to an award of
compensatory damages, we find that the offer of full relief in this case
constitutes the full measure of relief available regarding this matter,
and renders claim 2 moot.
In claim 3, we find that complainant contends that a certain confidential
report, containing her name, was associated with the EEO investigative
report of another employee, and that the report was �un-sanitized� thereby
further damaging her career potential. We note that the report at issue
is a chronicle of the status of various requests (e.g., FOIA requests,
requests for EEO Counseling, requests for congressional inquiry),
grievances, and EEO complaints filed by named employees, including
complainant. Nonetheless, complainant provides no evidence to show
that the confidentiality of this employee's complaint file was breached,
and /or that this report was used against her interests concerning any
specific non-promotion or any other action adverse to her employment.
Accordingly, as above, given that the offer of full relief provides
complainant with attorney's fees and is likely to act as a deterrent,
and given our determination above that complainant is not entitled to an
award of compensatory damages, we find that the offer of full relief in
this case constitutes the full measure of relief available to complainant
concerning this matter, and renders claim 3 moot.
Finally, after careful review, we find no evidence to support
complainant's claim that the AJ engaged in bias against her interests,
and we find that she incurred no detriment in pursuing this appeal by
the agency's late filing of its final actions in this case.
In conclusion, for the reasons set forth above, we AFFIRM the agency's
dismissal of the captioned complaints on the grounds of mootness.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 24, 2003
__________________
Date