Geraldine Stewart, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 11, 1999
05970657 (E.E.O.C. Feb. 11, 1999)

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.