01990735
08-19-1999
Graham A. Dadd, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Graham A. Dadd v. Department of Veterans Affairs
01990735
August 19, 1999
Graham A. Dadd, )
Appellant, )
)
v. ) Appeal No. 01990735
) Agency No. 98-0175
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
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 Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was issued on October
7, 1998. The appeal was postmarked October 30, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that he failed to accept a certified offer of
full relief.
BACKGROUND
Appellant, a Pharmacy Technician, initiated contact with an EEO Counselor
on August 29, 1997. On September 23, 1997, appellant filed a formal
EEO complaint wherein he alleged that he was subjected to discriminatory
harassment and a hostile work environment on the basis of his physical
disability (limited use of left arm) when on August 28, 1997, a supervisor
stated to him "Can't you even move the cart you handicap", and "Why
do they hire handicapped people who can't do their job" in response to
appellant asking her if he could move a metal cart in order to reach the
narcotics cabinet. Appellant requested as corrective action that the
official who made the remarks to him be stripped of her Supervisory
Pharmacy Technician title; that this official be downgraded to the
position of a Pharmacy Technician; that this official be officially
counseled on proper attitude and behavior toward disabled veterans
and fellow employees; and that appellant be granted a transfer to the
Engineering Services Motorpool.
The complaint was accepted for investigation. On January 28, 1998,
the agency extended to appellant a settlement offer, which the agency
subsequently certified as full relief. The agency stated that failure
to accept the offer within 30 days of its receipt would result in the
dismissal of the complaint. The offer provided that the Supervisor at
issue would be counseled regarding her alleged use of pejorative terms
related to disability. The agency stated that the Supervisor would be
advised that these types of comments are unacceptable and will not be
tolerated. The agency further stated that appellant would be provided
with a fair and equitable work environment free from harassment or any
other discrimination based on race, color, religion, sex, national origin,
age, disability and reprisal for filing this complaint.
By letter dated February 26, 1998, appellant rejected the agency's
certified offer of full relief. Appellant stated that since the
occurrence of the incident cited in his complaint, he has not been
provided with a fair and equitable work environment free from harassment.
Appellant stated that he has been accused of not performing his daily
duties as a Pharmacy Technician; he has been sexually harassed; favoritism
has been shown to other employees; and he has been threatened by his
Supervisor.
In its final decision, the agency dismissed the complaint on the grounds
of failure to accept a certified offer of full relief. The agency
noted that appellant could request that his complaint be reinstated for
further processing if he believed that the agency failed to comply with
the terms of the settlement.
On appeal, appellant argues that on several occasions since the alleged
incident occurred he has been subjected to treatment contrary to what
the agency says it will provide in the offer of full relief. Appellant
further states that no settlement was offered before an EEO Investigator
was assigned to the matter.
ANALYSIS AND FINDINGS
The decision to dismiss a complaint for failure to accept full relief
should be made by the agency when an appellant refuses to accept
an offer of full relief made in compliance with EEOC Regulation 29
C.F.R. �1614.107(h). Under the regulation, the agency must provide
written certification to the appellant that its offer constitutes full
relief and that failure to accept the offer within thirty days of its
receipt may result in dismissal of the complaint. When an appellant
refuses the offer, the agency may dismiss the complaint.
When an appellant appeals, objecting to the dismissal of a complaint under
the above provisions, the Commission will uphold the agency's dismissal
if 1) the certification and offer were properly made in accordance with
the regulation, and 2) the offer constitutes full relief given the facts
of the case.
In this case, the record shows that the certification was made by an
official authorized to certify that an offer constitutes full relief.
The certification accompanied the offer. Therefore, the agency's
offer satisfied the procedural requirements of a certified offer of
full relief.
Full relief must be evaluated in terms of whether it includes everything
to which the complainant would be entitled if a finding of discrimination
were entered with respect to all of the allegations in the complaint, See
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Merriell v. Department
of Transportation, EEOC Request No. 05890596 (August 10, 1989), and
it must be specifically tailored to cure the particular source of the
identified discrimination and minimize the chance of its recurrence.
In Albemarle, the Court held that the purpose of Title VII is to
make victims whole. 422 U.S. at 418-19. This requires eliminating
the particular unlawful employment practice complained of, as well as
restoring the victim to the position he or she would have occupied were
it not for the unlawful discrimination. Id. at 420-21.
Appellant alleged that he was discriminated against when he was subjected
to disparaging remarks by a Supervisor. The agency's settlement offer
provided that the Supervisor would be counseled regarding her alleged
use of pejorative terms related to disability, and she would be advised
that these types of comments are unacceptable and will not be tolerated.
The settlement offer further provided that appellant would have a
fair and equitable work environment free from harassment or any other
discrimination based on race, color, religion, sex, national origin, age,
disability, and reprisal for filing the instant complaint. We find that
the agency's offer did not constitute full relief, i.e., all the relief
to which appellant would be entitled in the event he prevailed on his
complaint.
With regard to appellant's request that the Supervisor be downgraded from
his supervisory position, we note that punishment of officials involved
in a discrimination claim is not required in an offer of full relief.
Wilson v. Department of the Navy, EEOC Request No. 05940403 (September
16, 1994). The agency has offered to meet appellant's request that the
Supervisor be counseled. However, the agency's offer that appellant would
be provided a fair and equitable work environment free from harassment or
any other discrimination does not offer appellant anything more than he
is entitled to as a federal employee. With regard to appellant's request
for a transfer, it appears from the record that appellant works in close
proximity to this Supervisor and that the cited incident is not the only
occasion where the Supervisor may have treated appellant in a demeaning
manner. Therefore, it appears that appellant's request for a transfer
must be considered as a viable remedy in this matter.<1> Accordingly,
the agency's dismissal of the complaint on the grounds of failure to
accept a certified offer of full relief was improper and is REVERSED.
This complaint is hereby REMANDED for further processing pursuant to
the ORDER below.
Finally, we note that in rejecting the agency's offer and again on appeal,
appellant raises several new allegations of discrimination. Appellant
is advised that if he wishes to pursue, through the EEO process, the
additional allegations he raised, he shall initiate contact with an EEO
Counselor within 15 days after he receives this decision. The Commission
advises the agency that if appellant seeks EEO counseling regarding the
new allegations within the above 15-day period, the date appellant first
raised these allegations with the agency shall be deemed to be the date
of the initial EEO contact, unless he previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO Counselor contact date. Cf. Alexander J. Qatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998).
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the 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 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 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission notes that whether reassignment falls within the scope of
full relief may depend on the relative degree of harassment, that is,
reassignment may be an appropriate remedy in an egregious case of workplace
harassment. See Martin v. Norbar, Inc., 537 F. Supp. 1260 (S.D. Ohio 1982)
(adequacy of employer response to harassment allegation questioned where it
denied plaintiff's request for a transfer).