Jean M. Chow, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 13, 2001
05991106 (E.E.O.C. Feb. 13, 2001)

05991106

02-13-2001

Jean M. Chow, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Jean M. Chow v. Department of the Army

05991106

02-13-01

.

Jean M. Chow,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Request No. 05991106

Appeal No. 01981308

Agency Nos. 93-10-0004

94-07-0156

Hearing Nos. 370-95-2003X

370-95-2131X

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On September 2, 1999, the Department of the Army initiated a request to

the Equal Employment Opportunity Commission (Commission) to reconsider the

decision in Jean M. Chow v. Louis Caldera, Secretary, Department of the

Army, EEOC Appeal No. 01981308 (August 5, 1999).<1> EEOC Regulations

provide that the Commission may, in its discretion, reconsider any

previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b). The agency's request is denied,

but for the reasons stated below, the Commission, on its own motion,

will reconsider the previous decision.

ISSUES PRESENTED

The issues presented are: (1) whether the agency's request for

reconsideration meets the criteria set forth at 29 C.F.R. � 1614.405(b);

(2) whether the previous decision's Order, directing the agency to pay

complainant $116,575.41 in compensatory damages, should be vacated; and

(3) whether complainant is entitled to an award of interest because of

the agency's delay in paying proven compensatory damages.

BACKGROUND

In light of the narrow issues to be addressed herein, we will not restate

the entire narrative presented in the previous decision. Instead we

note the following salient facts: on August 28, 1995, the agency, by

final decision (FAD-1), adopted the findings of an EEOC Administrative

Judge (AJ) that complainant had been subjected to sex discrimination

(sexual harassment) and reprisal for engaging in a protected activity.

The agency also adopted the AJ's determination that complainant was

entitled to those compensatory damages that were incurred as a result

of the agency's actions. Specifically, we note the following statement,

from an agency official, that:

I adopt the AJ's finding that your client is entitled to those

compensatory damages incurred as the result of the discrimination found

in this decision. I also adopt the AJ's finding that your client's

medical condition is the result of the discrimination found in this

decision and, therefore, she has established a causal connection between

the discriminatory acts and the harm suffered.

FAD-1 also indicated that complainant's claim for compensatory damages

had to be �submitted within 90 days . . .� and that �a decision [would

be issued] within 90 days of [her] submission.�

On October 30, 1995, complainant provided a detailed 84-page submission

supporting her claim that she was entitled to compensatory damages in

the amount of $216,565.41. In November 1997, complainant filed an appeal

with the Commission seeking enforcement of the FAD-1 because the agency,

after two years, had not yet issued a determination regarding compensatory

damages. According to complainant's attorney, she inquired about the

status of complainant's claim numerous times over the two year period,

and was told that an award "[w]ould be issued in the near future."

In April 1998, the agency finally issued a decision (FAD-2) that

established complainant's total compensatory damages at $93,031.01.

The agency did not offer an explanation regarding its two year delay in

reaching a decision. On August 5, 1999, the Commission issued a decision

ordering the agency to pay complainant $116,575.41 with interest for

compensatory damages.<2> Additionally, the agency was ordered to pay

reasonable attorney's fees.

In its reconsideration request (request), the agency revealed that on

April 21, 1998, while her appeal was pending before the Commission,

complainant and her attorney signed a statement that limited her

entitlement for compensatory damages to the $93,031.01 amount set forth

in FAD-2.<3> This statement, we note, was not a settlement agreement.

Upon receipt of the statement, the agency indicated that it issued a check

to complainant for $93,031.01, on June 1, 1998. A copy of the check was

provided by the agency. On July 13, 1998, a second check, for $10,593.08,

was issued to pay for attorney's fees. Finally, the agency maintained

that, should the Commission find that it was not precluded from issuing

its August 5, 1999 order, the agency should be permitted to offset the

$116,575.41 award by the $93,031.01 that it has already paid complainant.

Complainant did not respond to the agency's request.

ANALYSIS AND FINDINGS

In order to merit the reconsideration of a prior Commission decision,

the requesting party must submit written argument or evidence which

tends to establish that at least one of the criteria of 29 C.F.R. �

1614.405(b) has been met. The Commission's scope of review on a request

for reconsideration is narrow. Lopez v. Department of the Air Force,

EEOC Request No. 05890749 (September 28, 1989). A reconsideration

request is not merely a form of a second appeal. Regensberg v. USPS,

EEOC Request No. 05900850 (September 7, 1990). After a careful review

of the record, the Commission finds that the agency's request does not

meet the regulatory criteria of 29 C.F.R. � 1614.405. The agency did

not establish that the appellate decision involved a clearly erroneous

interpretation of material fact or law, or that the previous decision

would have a substantial impact on its policies, practices, or operations.

However, on its own motion, the Commission has decided to reconsider the

previous decision. An examination of the April 21, 1998 statement signed

by complainant and her attorney indicates that the issue of compensatory

damages was resolved in its entirety. There is no evidence that the

signatures of complainant and her attorney were involuntarily obtained.

Had the Commission been aware of the existence of this document at

the time the previous decision was issued, we would have taken it

into consideration. Accordingly, we find that the agency is no longer

required to comply with the Order set forth in the previous decision.<4>

In April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5,

1997), the Commission held that an employee was entitled to an award

of interest because of an agency's delay in paying proven compensatory

damages. Specifically, the Commission noted that:

Section 717(d) of the Civil Rights Act of 1964, 42 U.S.C. 2000e

16(d), as amended by section 114(2) of the Civil Rights Act of 1991,

Pub. L. 102-166 (Nov. 21, 1991), provides that "the same interest

to compensate for delay in payment shall be available [to federal

employees] as in cases involving nonpublic parties." By enacting the

1991 amendments, the Congress expressly waived the federal government's

sovereign immunity from interest for delay in the payment of all

monetary awards to victims of employment discrimination in the federal

government to the same extent that any non-federal entity would be

subject to. Also, courts have frequently awarded interest on claims of

"compensatory damages ... to make the wronged party whole by compensating

the wronged person for being deprived of the monetary loss, i.e., the

money and the use of the money." DeLaCruz v. Pruitt, 590 F. Supp. 1296,

1309 (N.D. Ind. 1984). See also, e.g., Rao v. New York City Health and

Hospitals Corp., 882 F. Supp. 321 (S.D.N.Y. 1995); Evans v. Ford Motor

Co., 768 F. Supp. 1318 (D. Minn. 1991); Cordero v. De Jesus - Mendez,

922 F. 2d 11 (1st Cir. 1990).

Id.

In the present case, we find that complainant became entitled to an award

of compensatory damages on August 28, 1995. She timely submitted relevant

proof in support of said damages on October 30, 1995. By the terms of

FAD-1, the agency was required to issue a determination on the issue of

compensatory damages 90 days after it received complainant's submission,

i.e., January 28, 1996. The agency has never provided an adequate

justification for why it took no action until April 1998. Therefore,

we deem it appropriate to award complainant interest on the $93,031.01

that she eventually received in June 1998.<5> The agency shall calculate

said interest from January 28, 1996 to the actual date of payment.

CONCLUSION

After a review of the agency's request to reconsider, the previous

decision, and the entire record, the Commission finds that the agency's

request fails to meet the criteria of 29 C.F.R. � 1614.405, and it is

the decision of the Commission to deny the request. The Commission,

however, has decided to reconsider the previous decision on its own

motion. The decision in EEOC Appeal No. 01981308 (August 5, 1999)

is hereby VACATED and the agency will comply with the Order below.

There is no further right of administrative appeal from a decision of

the Commission on a request to reconsider.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency is ordered to take the following remedial actions:

1. With respect to the $93,031.01 check issued to complainant in June

1998, the agency shall calculate the amount of interest accrued on that

sum from January 28, 1996 until the actual date of payment. The agency

will issue a check to complainant for the amount that is determined.

Interest shall be computed in accordance with the guidance contained in

5 C.F.R. � 550.806(d) and (e).

2. The agency shall submit a copy of the check to the Compliance Officer

as referenced below. The agency shall also include documentation that

indicates how its determinations regarding interest were computed.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R0900)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

____02-13-01__________________________

Date

1On 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.

2Although complainant's appeal came to the Commission as a claim of

non-compliance, the previous decision treated it as also being an appeal

of the agency's April 2, 1998 decision.

3The statement reads:

I [complainant], am in receipt of the Department of the Army's decision

dated April 7, 1998 that I am entitled to compensatory damages. I hereby

acknowledge that the Army's determination that I have experienced

compensatory damages in the amount of $93,031.01 is correct and agree that

this is the proper measure of my compensatory damages in this matter.

4The agency argued that �[o]nce [complainant] accepted full payment of

the mutually agreed upon resolution, she or her representative should

have notified the Commission that her complaint was resolved.� We find

that this obligation also applied to the agency.

5We find that the present case is distinguishable from our decision in

Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440 (June

14, 1999). In Hogeland, the Commission found that the complainant was

not entitled to interest on her compensatory damages award because the

amount of the damages was not determined until complainant's appeal was

decided. In the present case, the agency's non-compliance with FAD-1

and its dilatory behavior are what prevented complainant from receiving

a determination of damages in January 1996.