01983357_r
06-16-1999
Patricia Wesley-McKay, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Patricia Wesley-McKay, )
Appellant, )
)
v. ) Appeal No. 01983357
) Agency No. F09704H0010
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On March 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 4, 1998, pertaining to her
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.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. In her complaint, appellant alleged that she
was subjected to discrimination on the bases of physical disability
(heart condition), age (45), and in reprisal for prior EEO activity when
she was not selected for a DA Intern, GS-343-05/07, Management Analyst
position, Manpower and Management Branch, Resource Management Office
(Management Analyst position).
The record discloses that another employee (CW1) also filed an EEO
complaint concerning her non-selection for the same Management Analyst
position.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(h), for failure to accept a certified offer of full
relief. Specifically, on December 18, 1997, the agency sent appellant
a settlement offer whereby appellant and CW1 would be provided the
opportunity to compete for an identical Management Analyst position, and
the selectee would be provided back pay, interest, and all other benefits
due had she been selected for the original Management Analyst position
vacancy. The agency specifically noted that appellant was at that time
unrepresented by an attorney and had not requested compensatory damages;
accordingly, the agency determined that attorney's fees and compensatory
damages need not be addressed by the settlement offer. On January 23,
1998, appellant sent the agency a letter refusing the settlement offer.
Notwithstanding appellant's refusal of the settlement offer, the agency
carried out the selection process contemplated therein and awarded CW1
the newly-created Management Analyst position. On March 4, 1998, the
agency issued the FAD dismissing appellant's complaint pursuant to 29
C.F.R. �1614.107(h).
The Commission notes that in the attachment to her formal complaint
appellant alleged that the agency's actions were �retaliation against
[her] to inflict hurt and harm by denying [her] the opportunity to
enhance my career with the federal government.� Additionally, the record
discloses that on February 16, 1998, appellant, through her newly-acquired
attorney of record, submitted a request for compensatory damages in the
amount of $300,000 for the �severe pain and suffering caused [her] by the
[agency's] unfair treatment practices and discrimination against [her].�
EEOC Regulation 29 C.F.R. �1614.107(h) allows an agency to dismiss a
complaint when the complainant refuses to accept an offer of settlement.
However, the settlement offer must have been a certified offer of
full relief and the agency must have complied with certain procedural
requirements. See 29 C.F.R. �1614.107(h). In the case at hand, the
agency presented the offer to appellant in writing, and informed her
that it would dismiss her complaint if she failed to accept the offer.
In addition, the agency had the appropriate official certify that the
offer provided full relief. See Wrenn v. Dept. of Veterans Affairs,
918 F.2d 1073 (2nd Cir. 1990).
The remaining issue to be determined is whether the agency's offer
actually provided appellant with full relief. Full relief is defined
as that relief which would have been available to a complainant if
she had prevailed on every issue in her complaint. See Albemarle Paper
Co. v. Moody, 422 U.S. 405 (1975). In Albemarle, the court held that the
purpose of Title VII is to make victims whole, that is, to place them, as
near as possible, in the situation they would have occupied if the wrong
complained of had not occurred. Id, at 418-419. Thus, an offer of full
relief must be evaluated in terms of whether it includes everything to
which an appellant would have been entitled if there had been a finding
of unlawful discrimination. Merriell v. Department of Transportation,
EEOC Request No. 05890596 (August 10, 1989).
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence
that she has incurred compensatory damages, and that the damages are
related to the alleged discrimination. Jackson v. USPS, EEOC Appeal
No. 01923399 (November 12, 1992), request to reopen denied, EEOC
Request No. 05930306 (February 1, 1993). Moreover, the Commission
has clearly held that a complainant may raise a claim for compensatory
damages at any time in the administrative process up to, and including,
the appeal stage, but not thereafter. Simpkins v. USPS, EEOC Request
No. 05940887 (September 28, 1995). Should appellant prevail on this
complaint, the possibility of an award of compensatory damages exists.
See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993).
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 (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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:
June 16, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations