05970657
02-11-1999
Geraldine Stewart, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Geraldine Stewart v. Department of the Navy
05970657
February 11, 1999
Geraldine Stewart, )
Appellant, )
)
v. ) Request No. 05970657
) Appeal No. 01961364
Richard J. Danzig, ) Agency No. 95-00639-007
Secretary, )
Department of the Navy, )
Agency. )
)
GRANTING REQUEST FOR RECONSIDERATION
On March 31, 1997, Geraldine Stewart (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider the
decision in Geraldine Stewart v. John H. Dalton, Secretary, Department
of the Navy, EEOC Appeal No. 01961364 (March 5, 1997). EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, it is the
decision of the Commission to deny appellant's request but to reconsider
the prior decision on its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of appellant's complaint for failure to accept
a certified offer of full relief.
BACKGROUND
During the period in question, appellant was employed as a Recreation
Aide-Bingo at the agency's Morale, Welfare, and Recreation (MWR) activity
in Millington, Tennessee. In June 1995, appellant was suspected by her
supervisor of stealing bingo cards and was suspended from June 10 to June
15, 1995. When appellant returned to work on June 16, her hours had been
changed as well as reduced. Appellant thereafter filed a complaint in
which she alleged that she had been discriminated against when she was
suspended, had her schedule changed, and had her hours reduced.<0> As
relief, appellant requested that her supervisor be terminated, a public
apology, and $50,000 in compensatory damages.
On November 23, 1995, the agency issued appellant what it characterized
as a certified offer of full relief. The proposed relief consisted of
an offer to place appellant into one of three positions as a flexible
employee, including her former position. In limiting the relief to
reinstatement, the agency rejected the relief requested by appellant,
initially noting that a public apology and termination of appellant's
former supervisor were not necessary elements of full relief. The agency
also found that the response appellant had provided to its request for
objective evidence of compensatory damages did not substantiate her claim
for such damages. Finally, the agency noted that, because appellant was
paid administrative leave for the period she was suspended, she was not
entitled to any back pay. Appellant did not accept the agency's offer,
and her complaint was subsequently dismissed.
Following an appeal by appellant, the prior decision affirmed the agency's
dismissal of her complaint. In particular, the decision agreed that
appellant was not entitled to either an apology or the termination of her
former supervisor, and also found that, because appellant was not without
her wages any time prior to her resig-nation, she was not entitled to
back pay. Finally, the decision found that appellant had not submitted
sufficient evidence to support an entitlement to compensatory damages.
Specifically, the decision found that the evidence appellant had submitted
related to her pre-existing medical conditions and the medications she
was taking for those conditions. In this regard, the decision noted that
appellant had not submitted any bills or receipts for medical services
nor provided objective evidence of nonpecuniary losses.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
In support of her request to reconsider, appellant reiterates, in effect,
that she is entitled to compensatory damages, and she has submitted
statements from her husband and son in which they address the effects of
the agency's alleged discrimination. According to appellant's husband,
appellant has mood swings, gets real depressed, and cries frequently.
Appellant's son states that appellant has experienced mental stress and
anxiety and rarely goes out and socializes.
In considering these statements, we note that they could have been
provided previously, and, as such, do not constitute new evidence that was
unavailable at the time the previous decision was issued. Accordingly,
we find that appellant's request for reconsideration should be denied.
The Commission does find, however, that there is sufficient justification
to reconsider the prior decision on our own motion.
"Full relief" is defined as that relief which would have been available
to a complainant if she had prevailed on every issue in her complaint. See
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The Commission agrees
with the prior decision's conclusion that full relief does not include
either an apology or termination of appellant's former supervisor.
We also agree that, insofar as appellant was paid during the period
she was suspended, she is not entitled to back pay for that period.
Appellant also alleged, however, that following her suspension her work
hours were reduced. The Commission finds that, in the event appellant
could establish that this reduction was discriminatory, she would be
entitled to an award of back pay for the hours of work she was denied.
Because the agency's offer of full relief did not provide for such an
award, we find that the offer did not constitute full relief.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission DENIES the request but
reconsiders the prior decision on its own motion. The decision of the
Commission in Appeal No. 01961364 (March 5, 1997), as well as the agency's
final decision, is REVERSED. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E1092)
The agency is ORDERED to process appellant's complaint in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to appellant that it has
received the remanded complaint 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 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.
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 (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
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:
February 11, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 The record reveals that appellant resigned from the agency on
July 1, 1995. The resignation is not part of appellant's complaint.