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.