Imogene W. Gates, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 2000
01992894 (E.E.O.C. Oct. 6, 2000)

01992894

10-06-2000

Imogene W. Gates, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Imogene W. Gates v. United States Postal Service

01992894

October 6, 2000

.

Imogene W. Gates,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01992894

Agency No. 4H-370-1347-94

DECISION

On February 22, 1999, the complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on February

9, 1999, pertaining to 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 of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In her complaint, as

defined by the agency, the complainant alleged that she was subjected to

discrimination on the bases of sex (female), age (59) and reprisal when:

on September 5, 1994, she was forced to work her Labor Day holiday;

from 1986 through 1994, she was denied the opportunity to transfer;

her complaints and concerns were not addressed by the Postmaster (PM);

and

her coworker was given special privileges and job assignments.

In her complaint, the complainant stated that the agency's years of

harassment and retaliation caused severe stress which manifested itself

in several serious medical conditions for which she was forced to use

sick leave and annual leave. In her affidavit she states that she was

under a doctor's care for the stress.<2>

On February 27, 1996, subsequent to the agency investigation, the

complainant requested a hearing before an administrative judge (AJ).

During a pre-hearing conference, held in 1998, the AJ reviewed with

all parties, the issues in the complaint, the rules, regulations and

the remedies which the complainant would receive should she prevail

on the merits. Additionally, the AJ advised the complainant on how to

prove her claim for compensatory damages.

In an effort to resolve the complaint, on July 8, 1998, the agency reduced

an offer of relief to writing and mailed it to the complainant on July

9, 1998. The offer provided, inter alia, that she would receive $500 as

compensatory damages.<3> As of the August 10, 1998 recommended decision

(Gates v. U.S. Postal Service, EEOC No. 250-96-8119X (August 10, 1998)),

the complainant had failed to respond to the agency's offer of relief.

In the instant case, the AJ found that the agency's offer of relief

constituted full relief, and that absent the complainant's acceptance of

the offer and consistent with Poirrier v. Department of Veterans Affairs,

EEOC Appeal No. 01933308 (May 5, 1994), the complainant's complaint

was moot. Accordingly, the AJ remanded the complaint to the agency

which, pursuant to 29 C.F.R. � 1614.107(a)(5) (previously codified at

29 C.F.R. � 1614.107(e)), dismissed the complaint as moot.

In the complainant's appeal and supplemental evidence she asserted that

she did not respond to the agency's offer because she was �very sick

and when [she] get[s] sick because of the Post Office

abuse [she] can't think - write or sleep.� She also stated that the

agency's offer fell short of making her whole. The agency requested

that its FAD be affirmed.

ANALYSIS AND FINDINGS

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. Under these revisions, the Commission deleted 29 C.F.R. �

1614.107(h), the dismissal basis for failure to accept a certified offer

of full relief from the regulations. See 64 Fed. Reg. 37,644, 37,645

(1999). Thereby, agencies may no longer dismiss administrative EEO

complaints due to a 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.

In Poirrier, the Commission held that where an AJ, prior to a hearing,

advises the parties as to the full and complete remedy to which a

complainant would be entitled upon a finding of discrimination, the

agency may elect to provide complainant the full and complete remedy as

defined by the AJ, without further processing of the merits of the case.

Here, the agency dismissed the present complaint as moot when it made

complainant an offer of relief, which was subsequently certified by the

AJ in his August 10, 1998 recommended decision, and complainant rejected

that offer.

The Commission has repeatedly held that compensatory damages may be

awarded for the past pecuniary losses, future pecuniary losses, and

non-pecuniary losses which are directly or proximately caused by the

agency's discriminatory conduct. See Wallis v. U.S. Postal Service,

EEOC Appeal No. 01950510 (November 13, 1995); Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. N 915.002 (July 14, 1992) at 8.

Presuming that the complainant had proven her claims, specifically the

transfer denial and the resulting stress related medical conditions,

we are not persuaded that the agency's offer of $500.00 in compensatory

damages would constitute full relief. Despite the lack of medical

evidence in the record, the complainant's claims below stated that the

agency subjected her to harassment for a period of approximately 9 years

which manifested into an illness which required medical attention.<4>

We also note that the offer did not address the sick leave complainant

claimed to have used as a result of the alleged discrimination.

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

and the complaint REMANDED for further processing.

ORDER

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. � 1614.109. The agency shall request that the Commission

appoint an administrative judge to conduct a hearing, as previously

requested by the complainant, within thirty (30) calendar days of the

date that this decision becomes final. A copy of the agency's letter

requesting the appointment of an administrative judge 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 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 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

October 6, 2000

__________________

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 29 C.F.R. Part 1614, 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 in a decision dated September 24, 1998, by a Hearing

Representative for the Director, Office of Worker's Compensation Programs

(OWCP), it was noted that there was evidence, from 1994 and continuing on,

which supported the complainant's claims that she was closely monitored

and watched, was spoken to inappropriately on a regular basis and asked

to perform the most difficult tasks. Moreover, on March 8, 1999, OWCP

accepted the complainant's claim for the diagnosed condition of �Major

Depression Disorder,� stemming from the treatment she received as a

Postal Service employee.

3 We note that the record contains neither a copy of the offer of full

relief, nor any evidence of when or if the complainant received it.

However, the AJ's August 10, 1998 recommended decision states the above

facts and specifies the relief offered to the complainant by the agency

in its written offer of full relief. Accordingly, the Commission finds

that there is sufficient evidence in the record to show that an offer of

full relief was reduced to writing and made available to the complainant.

4 We note that the AJ stated that he had asked the complainant if she

had any medical, psychiatric or counseling expenses. We find that the

question posed in such a manner would not elicit the full extent of the

complainant's compensatory damages.