Barbara E. Taylor, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01992889 (E.E.O.C. Feb. 16, 2000)

01992889

02-16-2000

Barbara E. Taylor, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Barbara E. Taylor, )

Complainant, )

)

v. ) Appeal No. 01992889

) Agency No. 98-00189-008

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

On February 10, 1999, the complainant received a final agency decision

(FAD) dismissing her employment discrimination complaint which alleged

discrimination based on her race (white) and mental disability (attention

deficit disorder (ADD)), in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

The complainant timely appealed the FAD to this Commission on February

24, 1999. Accordingly, the appeal is accepted in accordance with EEOC

Order No. 960, as amended.

The record shows that the complainant, a GS-07 Inventory Management

Specialist, initiated contact with an EEO Counselor on April 3, 1998.

In a formal complaint dated April 15, 1998, although not accepted by

the agency as a formal complaint until July 1, 1998, the complainant

alleged that the agency failed to accommodate her mental disability

of ADD. The complainant requested as relief: 1) that the harassment

by her coworkers cease; 2) a supervisor familiar with her disability;

3) training that is conducive to learning for a person with ADD; 4)

recoupment of leave used by both herself and her husband as a result of

the discrimination; 5) reassignment within her specialty or a similar

specialty with equal promotion potential and a work environment that

allowed her to achieve a high level of proficiency; 6) reimbursement

for medical expenses incurred as a result of the discrimination; 7)

reimbursement of legal fees incurred due to an unsatisfactory outcome

of her complaint;<2> 8) reimbursement for expenditures related to her

mental and physical exhaustion which resulted from the discrimination;

9) an evaluation of her past work history to determine if her disability

contributed to the previous ten years of nonpromotion and to determine

where she could most benefit the agency; and 10) an agreement that she

could revise this list at a later date if the parties could not reach

agreement.

On December 14, 1998, the agency presented the complainant with an offer

of full relief which included: 1) a reassignment compatible with her

experience and accommodating her physician's recommendation by way of

a temporary detail until a permanent transfer could be made, resulting

in the end of the alleged harassment at her work site; 2) restoration of

75 hours of sick leave; and 3) training so long as budgetary constraints

allowed. The offer specifically did not include compensatory damages for

medical expenses incurred because her disability was accommodated and did

not provide attorney fees because she was not represented by an attorney.

The letter notified the complainant that she had 30 days to accept the

offer or her complaint would be dismissed.

On January 8, 1999, the complainant notified the agency that she would

not accept the offer because she did not believe it constituted full

relief and requested that the complaint process continue. In its FAD,

the agency dismissed the complaint for failure to accept a certified

offer of full relief.

On appeal the complainant asserted that the agency's offer of full

relief was deficient. Specifically, the complainant contended that

the agency incorrectly found that she was not entitled to compensatory

damages because it properly accommodated her disability. Additionally,

the complainant argued that the offer did not place her in an equivalent

position to the one she previously held. Specifically, she alleged

that the agency should have corrected the discrimination in her work

environment rather than simply moved her to another area. Moreover, she

asserted that the position to which she was transferred to is in a less

desirable series with less promotion potential and less responsible work.

The complainant also contended that the offer was inadequate because

the training it provided constituted a conditional relief.

In response, the agency asserted that its offer was designed to cure

the identified discrimination, minimize the chance of reoccurrence,

and accommodate the complainant's disability. The agency stated that 29

C.F.R. � 1614.501 does not provide compensatory damages for claims based

on allegations of discrimination for failure to accommodate a disability.

Thus, it requested that its FAD be upheld.

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant

who establishes his or her claim of unlawful discrimination may receive,

in addition to equitable remedies, compensatory damages for past and

future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary

losses (e.g., pain and suffering, mental anguish). 42 U.S.C. �1981

a(b)(3). In Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399

(November 12, 1992), req. for recon. den'd, EEOC Request No. 05930306

(February 1, 1993), the Commission held that Congress afforded it the

authority to award such damages in the administrative process. See also

Turner v. Dept. of the Interior, EEOC Appeal Nos. 01956390 and 01960518

(April 27, 1998). Where a discriminatory practice involves the provision

of a reasonable accommodation, compensatory damages may not be awarded

where the employer demonstrates good faith efforts to make a reasonable

accommodation. 42 U.S.C. � 1981a(a) (3); Bernard v. Department of

Veterans' Affairs, EEOC Appeal No. 01966861 (July 17, 1998).

Under the new regulations, the Commission removed the dismissal

basis of failure to accept a certified offer of full relief. See 64

Fed. Reg. 37,644, 37,645 (1999). In other words, agencies may no longer

dismiss administrative EEO complaints due to the complainant's failure to

accept a certified offer of full relief. Any dismissal on the grounds

of failure to accept a certified offer of full relief is now improper

under the revised regulations.

Moreover, we find that even if offers of full relief were still available,

the agency's offer was insufficient because it did not properly analyze

or provide for compensatory damages to which the complainant may be

entitled under current law. See Jackson v. U.S. Postal Service, EEOC

Appeal No. 01923399 (November 12, 1992). We note further, here, that

the record is not sufficient to determine whether the agency has made a

good faith effort to accommodate the complainant's disability and would,

therefore, not be liable for compensatory damages. See Bernard, EEOC

Appeal No. 01966861.

Accordingly, the agency's decision in the present case must be VACATED,

and the complaint REMANDED for further processing in compliance with

the revised EEOC Regulations.

ORDER (E1199)

The agency is ORDERED to reinstate the complainant's complaint at the

point processing ceased in accordance with 64 Fed. Reg. 37,644, 37,656

(1999) (to be codified at 29 C.F.R. � 1614.108). The agency shall

acknowledge to 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 (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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

February 16, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________________________________ _________________

Date

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 We note that the record shows that the complainant was not represented

by an attorney until she filed this appeal with the Commission.