Robert A. Nance, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 20, 1998
01980941 (E.E.O.C. Nov. 20, 1998)

01980941

11-20-1998

Robert A. Nance, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Robert A. Nance v. Department of Transportation

01980941

November 20, 1998

Robert A. Nance, )

Appellant, )

)

v. ) Appeal No. 01980941

) Agency No. 93-0164

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On November 8, 1997, appellant filed a timely appeal with this Commission

from a final agency decision ("FAD") dated September 23, 1997, pertaining

to 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged

that he was subjected to discrimination on the bases of race (White),

sex (male), age (DOB 7/24/44), and physical disability (occupational

diseases) when on May 27, 1992, he received an "unacceptable" rating on

his performance evaluation.

The record indicates that appellant's complaint was scheduled for a

hearing before an EEOC Administrative Judge ("AJ"). By letter dated

August 22, 1995, the AJ advised both parties as to the full and complete

remedy to which appellant would have been entitled in the event that

a finding of discrimination was made. The AJ noted that if the agency

elected to offer appellant what was determined to be full relief, she

would remand the case back to the agency with a recommendation that it be

dismissed as moot. Further, the AJ advised that if appellant failed to

accept the offer of full relief, it would likely result in the dismissal

of his complaint pursuant to 29 C.F.R. �1614.107(h).

On August 28, 1995, the agency, in writing, unilaterally and

unconditionally promised to implement the AJ's findings as to what would

have been full relief. However, instead of implementing the terms of the

full relief offer, the agency underwent negotiations with appellant in an

attempt to come to an agreement on the wording of the full relief offer.

The record shows that this negotiation took place for almost two years.

Although appellant and the agency never reached a consensus, on July 28,

1997, the agency sent appellant a final certified offer of full relief.

The terms of the offer were consistent with those expressed by the AJ,

and informed appellant that he had thirty (30) days after receipt to

accept the offer or his complaint would be dismissed in accordance with

29 C.F.R. �1614.107(h).

By letter dated September 17, 1997, appellant rejected the agency's

certified offer, asserting that it did not include all the relief

to which he was entitled. On September 23, 1997, the agency issued

a final decision dismissing appellant's complaint pursuant to 29

C.F.R. �1614.107(h), for refusing a certified offer of full relief.

Notwithstanding EEOC Regulation 29 C.F.R. �1614.107(h), which provides

that an offer of full relief must be made before an agency issues

the notice required by 29 C.F.R. �1614.108(f) wherein a complainant is

notified that the investigation is completed and that s/he may request a

hearing, an AJ, prior to the hearing, may advise the parties as to the

full and complete remedy to which a complainant would be entitled upon

a finding of discrimination. See 29 C.F.R. �1614.501. At that point in

the proceedings, the agency may elect to provide the complainant the full

and complete remedy as defined by the AJ, without further processing of

the merits of the case. Poirrier v. Department of Veterans Affairs,

EEOC Appeal No. 01933308 (May 5, 1994). Poirrier requires that the

agency must promise -- unilaterally and unconditionally -- in writing

to provide the complainant with the full and complete remedy defined

by the AJ. If the agency does so, the AJ may remand the case to the

agency to dismiss the complaint as moot. If the agency later fails to

provide the complainant with the full and complete remedy as promised,

the complainant may file an appeal with the Office of Federal Operations.

In the instant case, we find that the agency failed to comply with the

narrow exception to 29 C.F.R. �1614.107(h) carved out by Poirrier and

its progeny. The Poirrier exception permits dismissal of a complaint,

pursuant to 29 C.F.R. �1614.107(e), on the grounds that it was rendered

moot by the agency's unilateral and unconditional promise to implement

the AJ's findings of what would constitute full relief. Here, the agency

dismissed appellant's complaint. Moreover, we find that the agency's

delay in presenting appellant the certified offer runs counter to the

underlying purpose of the exception, i.e., the speedy resolution of an

EEO complaint. Based on the foregoing, we find that the agency erred

in dismissing appellant's complaint for failure to accept a certified

offer of full relief.

Accordingly, the agency's decision to dismiss appellant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER

The agency is ORDERED to request assignment of an Administrative Judge

from the proper District Office to conduct a hearing in the present case.

The agency shall submit the request within fifteen (15) calendar days

of the date this decision becomes final. A copy of the agency's request

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:

November 20, 1998

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations