01986236
07-28-2000
Nancy Williams, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Nancy Williams v. Department of Veterans Affairs
01986236
July 28, 2000
Nancy Williams, )
Complainant, )
) Appeal No. 01986236
v. ) Agency No. 950001
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Nancy Williams (complainant) timely initiated an appeal from the agency's
final decision (FAD) concerning its award of compensatory damages, issued
in accordance with Nancy Williams v. Department of Veterans Affairs,
EEOC Appeal No. 01956831 (January 5, 1998).<1> In this prior decision,
the Commission found that the agency retaliated against complainant for
her prior EEO activity in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. when it changed her
work schedule. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
BACKGROUND
In the prior decision, the agency was ordered to solicit evidence from
complainant to substantiate her claim that the retaliatory change
in her work schedule led to an increase in her child-care expenses.
After receiving complainant's information, the agency was to issue a
final decision tendering an appropriate award of compensatory damages.
On July 10, 1998, the agency issued a FAD, finding that complainant failed
to establish that she suffered any pecuniary or non-pecuniary losses
as a result of the agency's discriminatory conduct. The agency noted
that complainant failed to submit any evidence, despite the agency's
January 28, 1998 notice to complainant, requesting that she submit
evidence within 45 days of receipt of the notice. The agency concluded
that complainant should therefore not be awarded compensatory damages.
It is from this FAD that complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she never received the January 28,
1998 letter requesting evidence of her expenditures. Complainant alleges
that her first knowledge that a decision was being rendered on this issue
was her receipt of the FAD.<2> In response, the agency argues that it
sent a letter to complainant's then-representative, soliciting information
regarding the alleged increased childcare expenses. The agency provides
a copy of the January 28, 1998 letter, along with a return-receipt card
indicating that someone at this representative's address signed for a
letter from the agency on January 30, 1998.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant's prior representative
<3> , who received the agency's January 28, 1998 letter soliciting
information on January 30, 1998, is not an attorney. When a
complainant's representative is not an attorney, receipt of a document
by the complainant's non-attorney representative is insufficient
to establish constructive notice to the complainant. See Scroggins
v. United States Postal Service, EEOC Request No. 05901153 (June 18,
1991); 29 C.F.R. � 1614.605(d). Instead, receipt of the document by the
complainant is required. See Carrigan v. United States Postal Service,
EEOC Request No. 05950264 (August 31, 1995). In the case at hand,
the agency provides no evidence that complainant ever received the
letter soliciting compensatory damages information. As noted above,
complainant alleges that she never received this letter. Moreover,
there is no evidence that the agency made any further attempts to comply
with the Commission's order concerning compensatory damages, despite the
fact that the January 28, 1998 letter sent to complainant's non-attorney
representative did not result in a reply. Indeed, the agency does not
even allege that it engaged in further efforts.
The record before us does not include any evidence of compensatory damages
incurred by complainant, although the agency mentions that some relevant
evidence may have been sent to its Augusta, Georgia facility after the
FAD was issued. Complainant's appeal submission focuses on the fact
that she never received the agency's request for information and does
not provide details of possible compensatory damages.
Accordingly, after a thorough review of the record, we find that it is
incomplete. We are unable to determine whether complainant is entitled
to any compensatory damages. This lack in the record is attributable to
the agency's failure to properly inform complainant of the information
she should provide. As such, we find that the agency's decision
that complainant is not entitled to compensatory damages is premature.
Therefore, we hereby VACATE the FAD and REMAND the issue of compensatory
damages for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall notify complainant of her right to present
evidence to the agency regarding her claim for compensatory damages,
including evidence to substantiate the extent of the increase in
complainant's child-care expenses attributable to the agency's
retaliatory change in her work schedule. The letter soliciting this
information shall be sent to complainant's representative, as well as
complainant. Within forty-five (45) calendar days of receipt of this
letter, complainant shall provide evidence that the damages claimed
are a result of the agency's discrimination and evidence of the amount
of claimed damages. Within thirty (30) calendar days of submission
of such evidence, the agency shall issue a final agency decision on
this issue, with appropriate appeal rights to the Commission.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the above actions have been taken, including documentation
establishing that complainant has been notified of her right to present
compensatory damages evidence and a copy of the agency's new final
decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant also alleges on appeal that the agency never offered
to reinstate her to her regular duty hours, as ordered by the prior
decision. A review of the Commissions compliance file on this case
establishes that complainant resigned shortly after filing her complaint
and therefore could not be reinstated to her original duty hours.
If complainant nonetheless believes that the agency has failed to comply
with the prior order, we advise her to file a petition for enforcement,
as described in our regulations. See 29 C.F.R. � 1614.503.
3 It is not clear from the record when complainant's current
representative became involved in her case, or when the prior
representative ceased to be involved.