01970623
01-19-1999
Carol A. Stepper, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Carol A. Stepper, )
Appellant, )
) Appeal No. 01970623
v. ) Agency No. 95-00251-024
) Hearing No. 380-95-8169X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. The Final Agency
Decision (FAD) was issued on September 26, 1996. The appeal was postmarked
October 23, 1996. Accordingly, the appeal is timely, (See 29 C.F.R. ��
1614.402(a)and 1614.604(b)), and is accepted in accordance with EEOC
Order 960.001, as amended.
ISSUES PRESENTED
The issues presented are: (1) whether appellant has established by a
preponderance of the evidence that the agency discriminated against her
on the basis of age (DOB 06-12-49) when it failed to assign her to the
"Sign Shop" in Paint Shop 71 at the Puget Sound Naval Shipyard on December
14, 1994; and (2) whether appellant is entitled to a permanent position
in the "Sign Shop, or in the alternative, compensatory damages.
PROCEDURAL HISTORY
Appellant sought EEO counseling on January 6, 1995, and filed her formal
EEO Complaint on March 1, 1995. The agency conducted an investigation
and issued its report on August 30, 1995. Appellant requested a
hearing before an administrative judge (AJ) which took place on June
24, 1996. On June 25, 1996, the AJ issued his decision finding that the
preponderance of the evidence supported a finding of sex discrimination
and did not support a finding of age discrimination. The AJ's recommended
remedies included: (1) changing appellant's official employment record
to reflect employment in the position of Painter WG-09 in the "Sign
Shop" effective December 14, 1994 (the date of non-reassignment) to
June 13, 1995 (the date appellant suffered a knee injury rendering her
physically unable to perform the painter's job in the "Sign Shop");
(2) a retroactive award of any fringe benefits that appellant may
not have received due to the failure to work in the "Sign Shop" from
December 14, 1994 to June 13, 1995. The AJ specifically rejected: (1)
an appointment to a permanent position at the agency, not in the "Sign
Shop" which would be within appellant's current physical limitations;
(2) back pay, since according the appellant's own admission, she did
not suffer any financial loss as a result of the non-reassignment; (3)
compensatory damages, since the record did not support the existence of
any pecuniary or non-pecuniary losses which appellant might be entitled;
and (4) punitive damages.
The agency, thereafter, submitted its FAD adopting the AJ's
recommendation, finding that the preponderance of the evidence supported
sex discrimination but not age discrimination. In addition, the agency
adopted the AJ's recommendation of remedies except that the agency did not
know if an official change in appellant's employment status was possible
since she had always remained in the status of Painter GS-09 in the Paint
Shop (Shop 71) during her assignment outside the Paint Shop (Shop 71).
Moreover, it is questionable whether the "Sign Shop" actually exists as
a divisional component within the Paint Shop (Shop 71). Accordingly,
the agency modified the AJ's recommendation on this matter and issued a
directive to review the official employment records of the comparative
employees placed in the "Sign Shop" on December 14, 1994, to determine how
they were officially assigned. If any employees were officially assigned
to the "Sign Shop" then the activity would be corrected to reflect same.
Otherwise, appellant would continue to occupy the official assignment
of Painter GS-09 in the Paint Shop (Shop 71).
Appellant appeals the FAD and requests that the Commission: (1) determine
that the record supports a finding of both age and sex discrimination;
and (2) require the agency to appoint appellant to a permanent position
in the "Sign Shop;" or, in the alternative, (3) award compensatory
damages in the form of loss of overtime and salary, future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses.
BACKGROUND
The record reveals the following:
Appellant began working for the agency on November 10, 1992, in a
temporary appointment as an Equipment Cleaner, WG-4. She was subsequently
converted to a career appointment and promoted to Painter Helper, WG-05 on
August 25, 1985. Following a series of promotions, appellant was promoted
to the position of Painter, WG-09 starting on December 15, 1991. In 1990,
appellant sustained an injury and was consequently placed on physical
limitations preventing her from performing a full range of functions
of a Painter. In an effort to accommodate her physical limitations,
the agency placed appellant in the "Sign Shop" which is a sub-shop of
the Paint Shop (Shop 71). Many painters with physical limitations are
assigned to the "Sign Shop" for varying periods of time until a more
permanent accommodating position can be found or until their physical
limitations are lifted and they can return to their parent shops.
The record reflects that employees are assigned temporarily to the
"Sign Shop" and are frequently trained to perform silk screening.
Appellant was trained to perform silk screening and remained in the
"Sign Shop" for four years. On occasions, appellant would be temporarily
assigned off-station work as well.
In approximately late November, 1994, appellant was temporarily assigned
to work on the Michigan project at SUBASE, Bangor and, after a few weeks,
on December 15, 1994, returned to the Shipyard. Appellant was not
permitted to return to the "Sign Shop" due to a lack of work. However,
two employees, C1 (male/DOB: 05-16-61) and C2 (male/DOB: 09-26-41)
were assigned to the "Sign Shop" in close proximity to appellant's
non-reassignment on December 15, 1994.
ANALYSIS AND FINDINGS
Age Discrimination
The ADEA provides that "[i]t shall be unlawful for an employer . .
. to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment because of
such individual's age." 29 U.S.C. �623(a)(1). This matter is properly
analyzed under the burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973),<1> Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks,
113 S.Ct. 2742 (1993). To establish discrimination under the ADEA,
appellant must establish that age was a determinative factor in the
sense that,"but for" his age, he would not have been subjected to the
action at issue. Long v. NASA, EEOC Appeal No. 01941238 (September 8,
1994); Krodel v. Young, 748 F.2d 701, 706 (D.C. Cir. 1984).
When the agency has articulated a legitimate, nondiscriminatory reason for
its actions, the Commission has held that it is unnecessary to strictly
follow the order of analysis set forth above. See Washington v. Dep't
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The inquiry
shifts from whether the complainant has established a prima facie case to
whether she has demonstrated by a preponderance of the evidence that the
agency's reason for its actions merely was a pretext for discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983).
The agency assigned two men, C1 (younger than forty) and C2 (54 years old
and approximately eight years older than appellant), to the "Sign Shop"
close to the time that appellant was denied reassignment to the "Sign
Shop." Three agency witnesses gave inconsistent testimony regarding the
bases for not taking appellant back to the "Sign Shop" in December, 1994.
The General Foreman for the Paint Shop 71 (GF) testified that he made
the decision not to take appellant back to the "Sign Shop" based on
lack of work. In addition, GF testified that it was customary practice
that as the General Foreman, he would make that decision. The Resource
Manager for the Paint Shop (RM) testified that the "Sign Shop" Foreman
(F1) made the decision not to take appellant back to the "Sign Shop"
based on appellant's inability to work with pneumatic tools. In addition,
RM testified that it was not standard practice to speak with the General
Foreman about these types of decision. F1 testified that he had no idea
why appellant was not brought back to the "Sign Shop" and that he was
not involved.
We agree with the AJ's finding that the agency's witnesses were not
credible and note that determinations of credibility are left to the sound
discretion of the AJ. Esquer v. USPS, EEOC Request No. 05960096 (September
6, 1996); Willis v. Dept. of Treasury, EEOC Request No. 05900589 (July
26, 1990).
The record supports that two employees, C1 and C2, were brought into the
"Sign Shop" to work under physical limitations during the same time period
that appellant was denied re-assignment. We agree with the AJ and find
that if the agency could find work for C1 and C2, it could have found
work for appellant. Accordingly, we do not find lack of work to be a
credible explanation for denying appellant the opportunity to return to
the "Sign Shop" in December, 1994.
The agency also attempts to show that C1 and C2 had different physical
limitations which renders them improper comparators since they could
perform work with pneumatic tools and appellant could not. We do
not find this argument persuasive since the alleged decision-makers
failed to testify that appellant's inability in using pneumatic tools
had anything to do with their decision. Moreover, we find compelling
the fact that appellant previously worked in the "Sign Shop" for four
years and was never required to use pneumatic tools. Accordingly, it
is without credibility that all of a sudden the "Sign Shop" had no use
for appellant due to her inability to use pneumatic tools.
We agree with the AJ's determination that the agency's articulated
reasons for its decision not to bring appellant back to the "Sign Shop"
are unworthy of belief. However, we also agree with the AJ and find
insufficient evidence to show that the agency's articulated explanation
for its decision are a pretext for age discrimination.<2> The only
evidence that appellant has presented which points to age discrimination
is the alleged statements made to appellant by her co-workers (not the
alleged decision-makers) which include "old woman" and "old lady."
Moreover, there is no evidence which connects these statements to
the individual(s) who made the decision not to reassign appellant.
In addition, we find compelling evidence the fact that the agency placed
a man, eight years older than appellant, into the "Sign Shop" around the
same time appellant's re-assignment was denied. Accordingly, we find
that the preponderance of the evidence does not support the finding that
age was a determining factor in the agency's decision not to re-assign
appellant to the "Sign Shop" in December, 1994.
Remedies
Change in Official Employment Record
While not expressly contested on appeal, we agree with the agency and find
that the record does not contain any evidence to support that appellant or
the comparative employees were ever assigned officially to the "Sign Shop"
on a permanent basis. In addition, there is no evidence to suggest that
the "Sign Shop" was a distinct divisional component of the Paint Shop
or that a classification exists which may reflect appellant's assignment
in the "Sign Shop." Moreover, we find that the record supports that
appellant was promoted to the position of Painter WG-09/Step 5, in the
Paint Shop (Shop 71), in December, 1991. Appellant testified that she
retained her employment status, Painter WG-09/Step 5, while on physical
limitations in the "Sign Shop" and after she returned to the Activity on
December 14, 1994. Although appellant was placed outside the Paint Shop,
the evidence supports the finding that she has remained under the Paint
Shop's supervisory authority.
Accordingly, we agree with the agency that it must first conduct
an inquiry as to the proper options in job classifications. If the
comparative employees were assigned to the "Sign Shop" on a permanent
basis, appellant's employment records should reflect the same. Otherwise,
appellant's employment records should reflect her current status (Painter,
WG-4102-09/Step 5), in the Paint Shop (Shop 71).
Permanent Position
Appellant argues that she should be entitled to a permanent position
at the GS-09 level that would accommodate her physical limitations.
Appellant is not entitled to such a position, since the record does not
indicate that she occupied such a position prior to the discrimination
or that it was reasonably likely that appellant would have been
promoted to such a position but for the discrimination. She is only
entitled to be placed into the position which she would have occupied
if the discrimination did not occur. Albemarle Paper Company v. Moody,
442 U.S. 405, 418-19 (1975). We find that the uncontroverted evidence
supports the finding that, but for the discrimination, appellant would be
in the same position she currently occupies (Painter WG-4102-09/Step 5).
Accordingly, we reject her claim for assignment to a permanent WG-09
position which can accommodate her physical limitations.
Back Pay
Although classified as compensatory damages, the appellant seeks back
pay on appeal. Not only does appellant fail to provide any evidence
in support of her claim for back pay, she testified at the hearing
that she did not suffer any financial loss for having been moved out
of the "Sign Shop." (See H.T. pgs. 71-72.) Accordingly, we affirm the
agency and AJ's rejection of back pay. However, to the extent that
an assignment in the "Sign Shop" from December, 1994 until June, 1995
(date of physical incapacitation) would have resulted in any additional
benefits for the appellant that she had not received (i.e. medical
insurance, life insurance, etc.) then the agency should also include a
retroactive award of those benefits in order to place appellant in the
position she would have been but for the discrimination.
Compensatory Damages
We remand the agency's finding that compensatory damages are inappropriate
in this matter. The record shows that appellant raised compensatory
damages, for the first time, during her closing argument and then on
appeal without presenting any evidence on the issue. 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). Since appellant has timely raised
a claim for compensatory damages, she is entitled to a supplemental
investigation where appellant must provide objective evidence that she
has incurred such damages. Thereafter, the agency must address the
validity of the claim. See Jackson v. USPS, EEOC Appeal No. 01923399
(November 12, 1992), aff'd, EEOC Request No. 05930306 (February 1, 1993).
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall review the official employment records of the
comparative employees placed in the "Sign Shop" on or about December 14,
1994, to determine if they were officially permanently assigned to the
"Sign Shop." If the agency determines that the official employment
records reflect that the comparative employees were officially assigned
permanent positions to the "Sign Shop" then the agency shall, within 30
days, correct appellant's official record to reflect same. Otherwise,
appellant's official record shall reflect her current employment status
of Painter, WG-4102-09, in the Paint Shop (Shop 71).
2. While appellant is not entitled to an award of back pay, the agency
shall conduct a supplemental investigation to determine whether appellant
would have received additional fringe benefits (e.g. life insurance and
medical insurance) if she remained assigned to the "Sign Shop" during
the period from December, 1994 through June, 1995, that she otherwise
did not receive. If so, the agency shall retroactively award appellant
said benefits.
3. The agency shall conduct a supplemental investigation to determine
the amount of compensatory damages appellant is entitled, if any.
See Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), request to reopen denied, EEOC Request No. 05930306
(February 1, 1993)<3>; Carle v. Department of Navy, EEOC Appeal
No. 01922369 (January 5, 1993). The agency shall allow appellant the
opportunity to present objective evidence in support of her claim.
Thereafter, the agency shall issue a final decision on the amounts owed to
appellant, if any. 29 C.F.R. �1614.110. This supplemental investigation
and issuance of a final decision must be completed within 90 calendar
days of the date of this decision becomes final. A copy of the final
decision must be submitted to the Compliance Officer, as referenced below.
4. Appellant shall be awarded attorneys fees as set forth below.
5. The agency shall take corrective, curative, and preventive action
to ensure that reprisal discrimination does not recur, including but
not limited to providing training to the responsible official(s) at the
Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington
facility in the law against employment discrimination. Within thirty (30)
calendar days of the date the training is completed, the agency shall
submit to the compliance officer appropriate documentation evidencing
completion of such training.
6. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of fringe benefits due appellant, if any, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Department of the Navy, Puget Sound
Naval Shipyard, Bremerton, Washington facility copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
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 (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:
January 19, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated
which found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Department of the Navy, Puget Sound Naval Shipyard, Bremerton,
Washington, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The Department of the Navy has been found to have discriminated
on the basis of sex (female) when a Painter WG-09 currently working
under physical limitations was denied reassignment to the "Sign Shop"
following her return from an off-site assignment. The Department of
the Navy has been ordered to: (1) award lost fringe benefits, if any;
(2) award compensatory damages, if any; (3) correct the complainant's
official employment records to reflect a permanent position in the "Sign
Shop" if such an official status was given to other similarly situated
employees; (4) award reasonable attorneys fees; and (5) take corrective
action in the form of training for the responsible official(s).
The Department of the Navy will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of the Navy will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
29 C.F.R. Part 16141 While McDonnell Douglas involved a race
discrimination claim under Title VII, courts and the Commission have
held that its analysis applies to claims under the ADEA as well.
Alphin v. Sears, Roebuck & Co., 940 F.2d F.2d 1497, 1500 (11th Cir. 1991).
2 However, we do agree with the AJ that the preponderance of the evidence
supports the finding that the agency's articulated reasons for its action
was pretextual for sex discrimination and do not need to address this
issue since the agency has adopted this finding and it has not been
raised on appeal.
3In Jackson, the Commission held that Congress afforded it the authority
to award such damages in the administrative process. It based this
assessment, inter alia, on a review of the statutory provisions of the
Civil Rights Act of 1991 in relation to one another and on principles
of statutory interpretation which require statutes to be interpreted
as a whole. In particular, the Commission discussed the meaning
of the statute's definition of the term �compelling party� and the
significance of the reference to the word �action� in Section 102(a).
In addition to the specific reasons set forth in Jackson for this
holding, Section 2000e-16(b)(Section 717) of the Civil rights Act of 1964
(42 U.S.C. �2000e et seq.)(CRA) conveyed to the Commission the broad
authority in the administrative process to enforce the nondiscrimination
provisions of subsection (a) through �appropriate remedies.� Similarly,
in Section 3 of the Civil Rights Act of 1991 (CRA of 1991), Congress
refers to its first stated purpose as being �to provide appropriate
remedies for intentional discrimination and unlawful harassment in the
workplace;�, thereby reaffirming that authority. Consequently, it is
our view that in 1991, Congress clearly intended to expand the scope
of the �appropriate remedies� available in the administrative process
to federal employees who are victims of discrimination. Moreover, in
Section 717(c) of the CRA, the term �final action� is used to refer to
administrative decisions by agencies or the Commission, as distinguished
from the term �civil action,� used to described the rights of employees
after such final action is taken. Therefore, the Commission reaffirms
the holding therein. See Cobey Turner v. Department of the Interior,
EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998).