05991106
02-13-2001
Jean M. Chow, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Jean M. Chow v. Department of the Army
05991106
02-13-01
.
Jean M. Chow,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05991106
Appeal No. 01981308
Agency Nos. 93-10-0004
94-07-0156
Hearing Nos. 370-95-2003X
370-95-2131X
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 2, 1999, the Department of the Army initiated a request to
the Equal Employment Opportunity Commission (Commission) to reconsider the
decision in Jean M. Chow v. Louis Caldera, Secretary, Department of the
Army, EEOC Appeal No. 01981308 (August 5, 1999).<1> EEOC Regulations
provide that the Commission may, in its discretion, reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b). The agency's request is denied,
but for the reasons stated below, the Commission, on its own motion,
will reconsider the previous decision.
ISSUES PRESENTED
The issues presented are: (1) whether the agency's request for
reconsideration meets the criteria set forth at 29 C.F.R. � 1614.405(b);
(2) whether the previous decision's Order, directing the agency to pay
complainant $116,575.41 in compensatory damages, should be vacated; and
(3) whether complainant is entitled to an award of interest because of
the agency's delay in paying proven compensatory damages.
BACKGROUND
In light of the narrow issues to be addressed herein, we will not restate
the entire narrative presented in the previous decision. Instead we
note the following salient facts: on August 28, 1995, the agency, by
final decision (FAD-1), adopted the findings of an EEOC Administrative
Judge (AJ) that complainant had been subjected to sex discrimination
(sexual harassment) and reprisal for engaging in a protected activity.
The agency also adopted the AJ's determination that complainant was
entitled to those compensatory damages that were incurred as a result
of the agency's actions. Specifically, we note the following statement,
from an agency official, that:
I adopt the AJ's finding that your client is entitled to those
compensatory damages incurred as the result of the discrimination found
in this decision. I also adopt the AJ's finding that your client's
medical condition is the result of the discrimination found in this
decision and, therefore, she has established a causal connection between
the discriminatory acts and the harm suffered.
FAD-1 also indicated that complainant's claim for compensatory damages
had to be �submitted within 90 days . . .� and that �a decision [would
be issued] within 90 days of [her] submission.�
On October 30, 1995, complainant provided a detailed 84-page submission
supporting her claim that she was entitled to compensatory damages in
the amount of $216,565.41. In November 1997, complainant filed an appeal
with the Commission seeking enforcement of the FAD-1 because the agency,
after two years, had not yet issued a determination regarding compensatory
damages. According to complainant's attorney, she inquired about the
status of complainant's claim numerous times over the two year period,
and was told that an award "[w]ould be issued in the near future."
In April 1998, the agency finally issued a decision (FAD-2) that
established complainant's total compensatory damages at $93,031.01.
The agency did not offer an explanation regarding its two year delay in
reaching a decision. On August 5, 1999, the Commission issued a decision
ordering the agency to pay complainant $116,575.41 with interest for
compensatory damages.<2> Additionally, the agency was ordered to pay
reasonable attorney's fees.
In its reconsideration request (request), the agency revealed that on
April 21, 1998, while her appeal was pending before the Commission,
complainant and her attorney signed a statement that limited her
entitlement for compensatory damages to the $93,031.01 amount set forth
in FAD-2.<3> This statement, we note, was not a settlement agreement.
Upon receipt of the statement, the agency indicated that it issued a check
to complainant for $93,031.01, on June 1, 1998. A copy of the check was
provided by the agency. On July 13, 1998, a second check, for $10,593.08,
was issued to pay for attorney's fees. Finally, the agency maintained
that, should the Commission find that it was not precluded from issuing
its August 5, 1999 order, the agency should be permitted to offset the
$116,575.41 award by the $93,031.01 that it has already paid complainant.
Complainant did not respond to the agency's request.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument or evidence which
tends to establish that at least one of the criteria of 29 C.F.R. �
1614.405(b) has been met. The Commission's scope of review on a request
for reconsideration is narrow. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989). A reconsideration
request is not merely a form of a second appeal. Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). After a careful review
of the record, the Commission finds that the agency's request does not
meet the regulatory criteria of 29 C.F.R. � 1614.405. The agency did
not establish that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or that the previous decision
would have a substantial impact on its policies, practices, or operations.
However, on its own motion, the Commission has decided to reconsider the
previous decision. An examination of the April 21, 1998 statement signed
by complainant and her attorney indicates that the issue of compensatory
damages was resolved in its entirety. There is no evidence that the
signatures of complainant and her attorney were involuntarily obtained.
Had the Commission been aware of the existence of this document at
the time the previous decision was issued, we would have taken it
into consideration. Accordingly, we find that the agency is no longer
required to comply with the Order set forth in the previous decision.<4>
In April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5,
1997), the Commission held that an employee was entitled to an award
of interest because of an agency's delay in paying proven compensatory
damages. Specifically, the Commission noted that:
Section 717(d) of the Civil Rights Act of 1964, 42 U.S.C. 2000e
16(d), as amended by section 114(2) of the Civil Rights Act of 1991,
Pub. L. 102-166 (Nov. 21, 1991), provides that "the same interest
to compensate for delay in payment shall be available [to federal
employees] as in cases involving nonpublic parties." By enacting the
1991 amendments, the Congress expressly waived the federal government's
sovereign immunity from interest for delay in the payment of all
monetary awards to victims of employment discrimination in the federal
government to the same extent that any non-federal entity would be
subject to. Also, courts have frequently awarded interest on claims of
"compensatory damages ... to make the wronged party whole by compensating
the wronged person for being deprived of the monetary loss, i.e., the
money and the use of the money." DeLaCruz v. Pruitt, 590 F. Supp. 1296,
1309 (N.D. Ind. 1984). See also, e.g., Rao v. New York City Health and
Hospitals Corp., 882 F. Supp. 321 (S.D.N.Y. 1995); Evans v. Ford Motor
Co., 768 F. Supp. 1318 (D. Minn. 1991); Cordero v. De Jesus - Mendez,
922 F. 2d 11 (1st Cir. 1990).
Id.
In the present case, we find that complainant became entitled to an award
of compensatory damages on August 28, 1995. She timely submitted relevant
proof in support of said damages on October 30, 1995. By the terms of
FAD-1, the agency was required to issue a determination on the issue of
compensatory damages 90 days after it received complainant's submission,
i.e., January 28, 1996. The agency has never provided an adequate
justification for why it took no action until April 1998. Therefore,
we deem it appropriate to award complainant interest on the $93,031.01
that she eventually received in June 1998.<5> The agency shall calculate
said interest from January 28, 1996 to the actual date of payment.
CONCLUSION
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. � 1614.405, and it is
the decision of the Commission to deny the request. The Commission,
however, has decided to reconsider the previous decision on its own
motion. The decision in EEOC Appeal No. 01981308 (August 5, 1999)
is hereby VACATED and the agency will comply with the Order below.
There is no further right of administrative appeal from a decision of
the Commission on a request to reconsider.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to take the following remedial actions:
1. With respect to the $93,031.01 check issued to complainant in June
1998, the agency shall calculate the amount of interest accrued on that
sum from January 28, 1996 until the actual date of payment. The agency
will issue a check to complainant for the amount that is determined.
Interest shall be computed in accordance with the guidance contained in
5 C.F.R. � 550.806(d) and (e).
2. The agency shall submit a copy of the check to the Compliance Officer
as referenced below. The agency shall also include documentation that
indicates how its determinations regarding interest were computed.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____02-13-01__________________________
Date
1On 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. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Although complainant's appeal came to the Commission as a claim of
non-compliance, the previous decision treated it as also being an appeal
of the agency's April 2, 1998 decision.
3The statement reads:
I [complainant], am in receipt of the Department of the Army's decision
dated April 7, 1998 that I am entitled to compensatory damages. I hereby
acknowledge that the Army's determination that I have experienced
compensatory damages in the amount of $93,031.01 is correct and agree that
this is the proper measure of my compensatory damages in this matter.
4The agency argued that �[o]nce [complainant] accepted full payment of
the mutually agreed upon resolution, she or her representative should
have notified the Commission that her complaint was resolved.� We find
that this obligation also applied to the agency.
5We find that the present case is distinguishable from our decision in
Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440 (June
14, 1999). In Hogeland, the Commission found that the complainant was
not entitled to interest on her compensatory damages award because the
amount of the damages was not determined until complainant's appeal was
decided. In the present case, the agency's non-compliance with FAD-1
and its dilatory behavior are what prevented complainant from receiving
a determination of damages in January 1996.