01981623
01-08-1999
Joyce Ross-Sanders, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joyce Ross-Sanders v. Department of the Navy
01981623
January 8, 1999
Joyce Ross-Sanders, )
Appellant, )
)
v. ) Appeal No. 01981623
) Agency No. 97-00146-N05
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On December 18, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on December 1, 1997,
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. In her complaint,
appellant alleged that she was subjected to discrimination on the bases of
sex (female) and age (DOB 11/7/56) when on or about January 24, 1997, she
was not selected for the Softlines Merchandise Coordinator (SMC) position
and when she was offered the Fashion Coordinator position on or about
January 28, 1997, but the job offer was rescinded the following day.
On October 8, 1997, the agency sent appellant a letter which was certified
by an individual designated by the agency's Director of Equal Employment
Opportunity, as an offer of full relief. The offer provided, inter alia,
to:
Retroactively place [appellant] in a[n] [SMC] position for the period
[February 2, 1997] to [July 20, 1997], which was the date reorganization
(sic) closed the position. The placement will be reflected in
[appellant's] personnel records and she will be provided all benefits
that placement in the position would have entitled her.
The letter further instructed appellant that if she failed to accept
the agency's certified offer of full relief, her complaint could be
dismissed pursuant to 29 C.F.R. �1614.107(h).
On November 7, 1997, appellant refused the offer, and on November 20,
1997, the agency issued a final decision dismissing her complaint pursuant
to 29 C.F.R. �1614.107(h), for refusing to accept a certified offer of
full relief.
The Commission notes that the individual who was selected for the SMC
position was provided placement elsewhere after July 20, 1997, when his
position was eliminated pursuant to the agency reorganization; however,
the record does not contain information indicating the position to which
the incumbent was reassigned.
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 settlement.
However, the settlement offer must have been a certified offer of
full relief and the agency must have complied with certain procedural
requirements. See 29 C.F.R. �1614.107(h). In the case at hand, the
agency presented the offer to appellant in writing, and informed her
that it would dismiss her complaint if she failed to accept the offer.
In addition, the agency had the appropriate official certify that the
offer provided full relief. See Wrenn v. Dept. of Veterans Affairs,
918 F.2d 1073 (2nd Cir. 1990).
The remaining issue to be determined is whether the agency's offer
actually provided appellant with full relief. Full relief is defined
as that relief which would have been available to a complainant if
she had prevailed on every issue in her 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. Id, at 418-419. 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. Merriell v. Department of Transportation,
EEOC Request No. 05890596 (August 10, 1989).
In the instant case, we find that there is insufficient information
in the record to determine if the agency's offer provided appellant
with full relief. If appellant were to prevail on the issues in her
complaint, she would be entitled to placement in the SMC position.
However, the record shows that the SMC position was eliminated as
a result of an agency reorganization, and that the incumbent of the
position was placed elsewhere within the agency. The record fails to
disclose the terms of the incumbent's placement after the elimination
of the SMC position, i.e., whether the position to which the incumbent
was reassigned was substantially equivalent to the SMC position. If the
incumbent was placed in a substantially equivalent position, appellant
would be entitled to similar placement as an element of full relief.
Accordingly, the agency's decision is hereby VACATED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall supplement the record with information concerning
the incumbent's placement after the elimination of the SMC position,
and make a comparison of that position with the SMC position appellant
currently holds.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall either reissue a new offer of full relief or notify
appellant that the processing of her complaint is being resumed.
A copy of the agency's notice of processing or new offer of full relief
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:
January 8, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations