01A24324_r
08-01-2003
Patricia S. Nutter, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Patricia S. Nutter v. Department of the Navy
01A24324
August 1, 2003
.
Patricia S. Nutter,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24324
Agency No. 02-68522-001
DECISION
Complainant appealed to this Commission from the agency's July 10, 2002
dismissal of her employment discrimination complaint. In her complaint,
complainant alleged that she was subjected to discrimination on the basis
of disability when the agency failed to provide her with a reasonable
accommodation.
Complainant explains that she suffers from end-stage renal failure,
and has provided the agency documentation to support her need for
an accommodation. As a result of her condition, complainant can walk
only fifty (50) feet without stopping to rest. Complainant describes
the agency's facility as including two parking lots � an �East Lot�
approximately 100 feet from the door, and a �West Lot� 225 feet away.
Complainant explained that she could not arrive in time to use the East
Lot spaces, and therefore was forced to park in the West Lot. Complainant
requested a parking space next to the door of her building to accommodate
her impairment.
The agency refused complainant's request, citing security measures
that prohibit any vehicle from being within 50 feet of the building.
However, management offered to have an employee meet complainant in the
West Lot with a wheelchair to help her to the door. Complainant refused
to use the wheelchair, and filed a complaint of discrimination.
In her April 29, 2002 formal complaint, complainant requested an assigned
parking space in the East Lot, a motorized scooter for exclusive use
at the facility, and $10,000.00 in compensatory damages for �pain and
suffering.� In settlement negotiations, complainant offered to withdraw
her complaint in exchange for an assigned parking space in the East Lot.
The agency agreed, but complainant rescinded her offer before it could
be reduced to writing.
In its dismissal, the agency found that complainant's claim was moot,
pursuant to 29 C.F.R. � 1614.107(a)(5). Specifically, the agency found
that the effects of the alleged discrimination had been eradicated
when complainant was offered an effective accommodation, and the agency
specifically agreed to provide complainant with the conditions she sought
in settlement negotiations. The agency also found that complainant was
not entitled to compensatory damages.
On appeal, the agency noted that between the three handicapped
parking spaces in the East Lot, and seven in the West Lot, a designated
handicapped parking space always is available to complainant. Further,
the agency reiterates that it offered complainant the exact remedy she
requested in her formal complaint � an assigned parking space in East Lot.
Complainant filed no brief in support of her appeal.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
Where, as here, complainant has requested compensatory damages, the
agency must address the issue of compensatory damages before it may
dismiss a complaint for being moot. See Rouston v. National Aeronautics
and Space Administration, EEOC Request No. 05970388 (Mar. 18, 1999).
Because complainant requested compensatory damages, the agency should
have requested that complainant provide some objective proof of the
alleged damages incurred, as well as objective evidence linking those
damages to the adverse actions at issue. See Allen v. United States
Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton
v. Department of Defense, EEOC Appeal No. 01932422 (Dec. 3, 1993).
In the present case, complainant requested compensatory damages. Although
the agency found that complainant was not entitled to compensatory
damages, the record contains no agency request for complainant to provide
support for her compensatory damages claim. Further, the agency does
not contend that it ever requested this information from complainant.
The agency's finding that complainant was not entitled to compensatory
damages, and that the complaint was moot, without first attempting to
obtain evidence regarding complainant's damage request, was improper.
Even assuming that the agency instructed complainant to provide objective
evidence of compensatory damages, the complaint should not have been
dismissed as moot. The agency based its dismissal largely, if not
entirely, on settlement negotiations for an assigned parking space.
�Settlement negotiations, including any statements or proposals, are
to be treated as confidential and privileged to facilitate a candid
interchange to settle disputes informally.� Harris v. Department of
the Navy, EEOC Request No. 05941002 (Mar. 23, 1995). Ordinarily,
settlement negotiations are not part of the legal record for the
adjudication of an appeal.<1> Cf. Wilbourne v. Department of Veterans
Affairs, EEOC Petition No. 03A00064, n. 3 (Aug. 2, 2001) (Reminding
petitioner that all matters raised and statements made during settlement
negotiations remain confidential and are not part of the legal record).
The Commission will not analyze new complaints based on a settlement
offer, because it would undermine the purpose of settlement negotiations.
See Millea v. Department of Veterans Affairs, EEOC Request No. 05980235
(May 21, 1998) (claim alleging harm from settlement offer dismissed);
Montague v. Department of the Army, EEOC Request No. 05920231 (May 2,
1992) (citing Olitsky v. Spencer Gifts, Inc., 843 F.2d 123 (5th Cir.),
cert. denied, 488 U.S. 925 (1988)); see also Green v. United States Postal
Service, EEOC Request No. 05980207 (June 25, 1998) (agency's withdrawal
of an offer made in settlement not actionable). The Commission finds
it would defeat the purpose of such negotiations to allow the agency to
base its dismissal on matters discussed in a settlement offer. Further,
the agency has not shown that complainant actually was provided with
the accommodation of an assigned parking space in the East Lot.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the matter is
REMANDED for further processing.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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)
(1994 & Supp. IV 1999). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 1, 2003
__________________
Date
1One obvious exception is appeals alleging
breach of a settlement agreement.