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.