01983769
08-30-1999
Ruby Rector, Appellant, v. David J. Barram, Administrator, General Services Administration,) Agency.
Ruby Rector, )
Appellant, )
)
v. ) Appeal No. 01983769
) Agency No. 96-R9-PBS-RDR-09
David J. Barram, ) Hearing No. 340-97-3194X
Administrator, )
General Services Administration,)
Agency. )
________________________________)
DECISION
On April 4, 1998, Ruby Rector (appellant) timely appealed the final
decision of the General Services Administration (agency), dated March 12,
1998, concerning her claim for compensatory damages following a finding
that she had been discriminated against in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
The record reflects that on November 28, 1997, the agency issued a final
decision in which it adopted an EEOC administrative judge's (AJ) finding
that appellant had been discriminated against on the basis of her race
(Black) when she was not provided with an Individual Development Plan
(IDP) or other guidance which might have assisted her in gaining the
qualifications she needed to be promoted to the GS-12 level when the
Realty Specialist position she occupied was re-classified from a GS-11
grade level to a GS-12 in May/June 1994. However, both the AJ and the
agency found that appellant was not discriminated against by the agency
actual failure to promote her to the GS-12 level because the evidence
showed that she was not qualified for the position. To remedy appellant,
the AJ recommended that appellant by provided with the opportunity to
return from retirement and receive an IDP and appropriate developmental
assignments and training which would allow her to qualify for promotion to
the GS-12 level. The record reflects that appellant voluntarily retired
from the agency in December 1994. In its final decision adopting the AJ's
finding of discrimination, the agency modified the recommended relief.
Noting that appellant retired pursuant to a "Buyout Agreement," which
prohibited her reemployment with the Federal government for a period
of five years, the agency decided it could not offer appellant the
opportunity to return to work without forcing appellant to forfeit the
sizeable monetary early retirement incentive she received. Therefore,
the agency retroactively promoted appellant to the GS-12 level effective
May 15, 1994, and provided her with a backpay award from that date up
to her voluntary retirement.<1>
In the agency's November 28, 1997 final decision, it also advised
appellant that she might be entitled to compensatory damages and
that an inquiry into that issue would be conducted.<2> The agency
subsequently requested that appellant submit any documentation she had
to support a compensatory damages award. By letter dated December 12,
1997, appellant's union representative responded to the agency's letter,
requesting $300,000 in compensatory damages. In support of this claim,
the union representative attached a notarized one-sentence statement
from appellant, dated December 10, 1997, which stated: "I Ruby D. Rector
do hereby state, had I received my promotion from GS-11 to GS-12 in May
of 1994, I would have continued working another 3 years to enhance my
retirement fund [emphasis in the original]."
On March 12, 1998, the agency issued its final decision, concluding
appellant had failed to establish her entitlement to a compensatory
damage award because there had been no finding of discrimination in
connection with the agency's actual decision not to promote appellant to
the GS-12 level. Rather, the agency asserted that it provided appellant
with "greater than" make-whole relief by providing her with a retroactive
promotion to GS-12 because it could not offer her reemployment due to the
terms of her retirement agreement to give her the opportunity to become
more competitive for future GS-12 promotions. Moreover, the agency found
that appellant's claim that she would have stayed three more years had
she been promoted was "speculative at best." Based on these factors,
the agency concluded that appellant was not entitled to a compensatory
damages award. It is from this decision that appellant now appeals.
Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified at 42 U.S.C. �1981a, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. Section 1981a(b)(3) limits the total amount
of compensatory damages that may be awarded each complaining party for
future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other non-pecuniary losses,
according to the number of individuals employed by the respondent.
The limit for a respondent who has more than 500 employees is $300,000.
42 U.S.C. �1981a(b)(3)(D).<3> Non-pecuniary losses are losses that
are not subject to precise quantification including emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character and reputation,
injury to credit standing, and loss of health.
The brief statement submitted by appellant to the agency in December
1997 in support of her claim for compensatory damages asserts that she
should be compensated for her reduced retirement annuity due to her
early retirement. Appellant alleges that if she had been promoted to
the GS-12 level she would have remained employed for three more years
before retiring. The Commission agrees with the agency's position that
appellant has not established her entitlement to compensatory damages
on this basis for several reasons. First, both the EEOC AJ and the
agency found no discrimination in the agency's decision not to promote
appellant to the GS-12 level. The agency's discriminatory acts were,
instead, in not providing appellant with adequate preparation (through
an IDP and other training opportunities) to be competitive for GS-12
openings. As a result, the AJ did not recommend that appellant receive
a retroactive promotion. The agency, however, provided the retroactive
promotion because it could not reemploy appellant and provide her with
the missed developmental opportunities because of the terms of her early
retirement agreement. Therefore, absent discrimination, appellant would
have received an IDP and other developmental opportunities, but there
is no guarantee that she would have been promoted to the GS-12 level.
Second, even if she had eventually been promoted to the GS-12 level,
it is pure speculation when she would have chosen to retire.
Finally, to the extent that appellant is alleging a constructive
discharge due to a forced early retirement, the Commission notes that this
allegation was not raised during the processing of her complaint. Under
Commission regulations, allegations of discrimination must first be raised
with an agency EEO counselor, and not with the Commission on appeal.
See 29 C.F.R. �1614.105(a). If appellant wishes to pursue an allegation
of constructive discharge, she must seek EEO counseling on the matter
and raise it in another complaint. See Olsen v. Department of Defense,
EEOC Appeal Nos. 01956675, 01966077 (July 29, 1998); Perez v. Department
of Defense, EEOC Appeal No. 01962775 (December 4, 1996).
Accordingly, after careful consideration of all the evidence of record,
as well as the arguments of both parties on appeal, the Commission AFFIRMS
the agency's decision to deny appellant's claim for compensatory damages.
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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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 30, 1999
______________ _______________________________
DATE Frances M. Hart
Executive Officer
1 The Commission reminds the agency that, if it has not already
done so, it should make any applicable retroactive contributions
to appellant's retirement fund as part of its backpay award.
See Vereb v. Department of Justice, EEOC Petition No. 04980008
(February 26, 1999).
2 It is noted that the AJ did not recommend an investigation into the
issue of compensatory damages because appellant did not specifically
seek such damages in her complaint or at the hearing.
3 The Supreme Court has held that compensatory damages are recoverable
in the administrative process. West, Secretary of Veterans Affairs
v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14, 1999).