01971991_r
01-21-1999
Jeffrey Enterline, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jeffrey Enterline, )
Appellant, )
) Appeal No. 01971991
) Agency No. 4C-442-1102-96
v. )
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On June 3, 1997,<1> appellant timely appealed the agency's May 14, 1997
final decision, which dismissed his complaint for failure to accept the
agency's certified offer of full relief. In dismissing the complaint,
the agency noted that it had complied with the procedural requirements
regarding an offer of full relief and that appellant failed to respond
to its offer.
EEOC Regulation 29 C.F.R. �1614.107(h) allows an agency to dismiss a
complaint when the complainant refuses to accept an offer of full relief.
Under the regulation, the agency must provide written certification to
the complainant that its offer constitutes full relief and that failure
to accept the offer within thirty days of its receipt may result in
dismissal of the complaint. When a complainant refuses to accept the
offer, the agency may dismiss the complaint. The record reveals that
appellant received the agency's written offer of full relief on December
4, 1996. The offer informed him that it would dismiss his complaint
if he failed to accept the offer. In addition, the record reveals that
the agency had the appropriate official certify that the offer provided
full relief. See Wrenn v. Department of Veterans Affairs, 918 F.2d 1073
(2nd Cir. 1990). Accordingly, the procedural requirements of �1614.107(h)
were satisfied.
The remaining issue to be determined is whether the agency's offer
constituted an offer of full relief. Full relief is defined as
that relief which would have been available to a complainant if he
had prevailed on every issue in his complaint. See Albemarle Paper
Co. v. Moody, 422 U.S. 405 (1975). In Albemarle, the court held that the
purpose of Title VII is to make victims whole, that is, to place them,
as near as possible, in the situation they would have occupied if the
wrong complained of had not occurred. Thus, an offer of full relief
must be evaluated in terms of whether it includes everything to which
an appellant would have been entitled if there had been a finding of
unlawful discrimination. Paris v. U.S. Postal Service, EEOC Request
No 05940734 (May 12, 1995); Merriell v. Department of Transportation,
EEOC Request No. 05890596 (August 10, 1989).
In his June 4, 1996 complaint, appellant alleged that he was discriminated
against on the bases of race (white), physical disability (asthma), and
in reprisal (prior EEO activity) when from April 2, 1996 to April 10,
1996 and ongoing, fumes from new dividers in the "vertical flat case"
made him dizzy and aggravated his asthma. Appellant alleged that his
immediate supervisor (Supervisor A) assigned another employee to "case"
his route initially and provided appellant with a fan. Appellant further
alleged that on April 10, 1996, the supervisor of Customer Service Support
(Supervisor B) told him that he did not smell any fumes, and that he
knew all there was to know about asthma. Supervisor B removed the fan.
Appellant also alleged that Supervisor B ordered him back to his "case"
and also ordered him not to eat at appellant's lunch stop, the Periscope
restaurant. Appellant further alleged that as a result of Supervisor B's
actions on April 10, 1996, he had to leave his "case" every few minutes
because of the fumes. Appellant alleged that 10 to 15 minutes after
completing a form "1767" on April 10, 1996, the dividers were replaced.
The lunch order, however, was not revoked. In his complaint, appellant
requested that Supervisor B be removed from supervisory duties; that
Supervisor B have no verbal or physical contact with him; that he have
the right to choose his lunch stop and that he be provided all other
relief available.
The agency's offer of relief provided as follows: (1) that postal
management as an act of good faith agrees that all employees are to
be treated with dignity and respect; (2) that harassment of employees
will not be condoned by any management official in the Akron District;
(3) that immediate action will be taken to identify and correct any
occurrence to ensure that the doctrine of mutual dignity and respect
extends to every employee; (4) the designated lunch restaurant will be
the Periscope which is presently on the employee's route and requested
by the employee; and (5) that there will be no acts of retaliation taken
against any employee for their opposition to any practice they consider
unlawful for their use of the EEO process.
Upon review, the Commission finds that the agency's offer does not
constitute an offer of full relief. Appellant's complaint is not subject
to dismissal because we find appellant has, in effect, raised a claim for
compensatory damages. In his complaint and in his request for counseling,
appellant alleged that exposure to the fumes from the dividers aggravated
his asthma. While appellant did not characterize his claim as a request
for compensatory damages, the Commission has held that a complainant
need not use legal terms of art such as �compensatory damages,� but
may merely use words or phrases to put the agency on notice that the
relevant pecuniary or non-pecuniary loss has been incurred. See Haynes
v. U.S. Postal Service, EEOC Request No. 05920891 (December 14, 1993);
Park v. U.S. Postal Service, EEOC Appeal No. 01931280 (December 7, 1993).
Should appellant prevail on this complaint, the possibility of an award
of compensatory damages exists. See Glover v. U.S. Postal Service, EEOC
Appeal No. 01930696 (December 9, 1993). Accordingly, since appellant
raised a claim for compensatory damages, the agency should have requested
objective evidence of the alleged damages incurred and evidence that
the damages were linked to the alleged unlawful discrimination prior
to making its certified offer. See Price v. U.S. postal Service, EEOC
Request No. 05950480 (October 11, 1996); Jackson v. U.S. Postal Service,
EEOC Request No. 05930306 (February 1, 1993).
Finally, the Commission notes that in his complaint and on appeal,
appellant requested the removal of Supervisor B as a supervisor and also
that Supervisor B not have any contact with him. The Commission notes
that punishment of officials involved in a discrimination claim is not
a proper part of full relief. See Price, supra; Vincent v. Department
of the Army, EEOC Request No. 05941012 (February 27, 1996); Motley
v. U.S. Postal Service, EEOC Request No. 05910435 (May 23, 1991).
Accordingly, consistent with our discussion herein, the agency's decision
to dismiss appellant's complaint for failure to accept a certified offer
of full relief is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with applicable regulations and the
order below.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (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(c) (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:
Jan. 21, 1999
DATE Ronnie Blumenthal, Director
1On January 2, 1997, appellant originally filed a premature appeal
before the agency had issued its final decision. However, this defect
was cured when, on June 3, 1997, appellant filed a timely appeal from
the May 14, 1997 final agency decision. Appellant apparently filed the
premature appeal when he received the agency's offer of full relief in
December 1996.