Nancy Williams, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01986236 (E.E.O.C. Jul. 28, 2000)

01986236

07-28-2000

Nancy Williams, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Nancy Williams v. Department of Veterans Affairs

01986236

July 28, 2000

Nancy Williams, )

Complainant, )

) Appeal No. 01986236

v. ) Agency No. 950001

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Nancy Williams (complainant) timely initiated an appeal from the agency's

final decision (FAD) concerning its award of compensatory damages, issued

in accordance with Nancy Williams v. Department of Veterans Affairs,

EEOC Appeal No. 01956831 (January 5, 1998).<1> In this prior decision,

the Commission found that the agency retaliated against complainant for

her prior EEO activity in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. when it changed her

work schedule. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

BACKGROUND

In the prior decision, the agency was ordered to solicit evidence from

complainant to substantiate her claim that the retaliatory change

in her work schedule led to an increase in her child-care expenses.

After receiving complainant's information, the agency was to issue a

final decision tendering an appropriate award of compensatory damages.

On July 10, 1998, the agency issued a FAD, finding that complainant failed

to establish that she suffered any pecuniary or non-pecuniary losses

as a result of the agency's discriminatory conduct. The agency noted

that complainant failed to submit any evidence, despite the agency's

January 28, 1998 notice to complainant, requesting that she submit

evidence within 45 days of receipt of the notice. The agency concluded

that complainant should therefore not be awarded compensatory damages.

It is from this FAD that complainant now appeals.

CONTENTIONS ON APPEAL

On appeal, complainant contends that she never received the January 28,

1998 letter requesting evidence of her expenditures. Complainant alleges

that her first knowledge that a decision was being rendered on this issue

was her receipt of the FAD.<2> In response, the agency argues that it

sent a letter to complainant's then-representative, soliciting information

regarding the alleged increased childcare expenses. The agency provides

a copy of the January 28, 1998 letter, along with a return-receipt card

indicating that someone at this representative's address signed for a

letter from the agency on January 30, 1998.

ANALYSIS AND FINDINGS

As an initial matter, we note that complainant's prior representative

<3> , who received the agency's January 28, 1998 letter soliciting

information on January 30, 1998, is not an attorney. When a

complainant's representative is not an attorney, receipt of a document

by the complainant's non-attorney representative is insufficient

to establish constructive notice to the complainant. See Scroggins

v. United States Postal Service, EEOC Request No. 05901153 (June 18,

1991); 29 C.F.R. � 1614.605(d). Instead, receipt of the document by the

complainant is required. See Carrigan v. United States Postal Service,

EEOC Request No. 05950264 (August 31, 1995). In the case at hand,

the agency provides no evidence that complainant ever received the

letter soliciting compensatory damages information. As noted above,

complainant alleges that she never received this letter. Moreover,

there is no evidence that the agency made any further attempts to comply

with the Commission's order concerning compensatory damages, despite the

fact that the January 28, 1998 letter sent to complainant's non-attorney

representative did not result in a reply. Indeed, the agency does not

even allege that it engaged in further efforts.

The record before us does not include any evidence of compensatory damages

incurred by complainant, although the agency mentions that some relevant

evidence may have been sent to its Augusta, Georgia facility after the

FAD was issued. Complainant's appeal submission focuses on the fact

that she never received the agency's request for information and does

not provide details of possible compensatory damages.

Accordingly, after a thorough review of the record, we find that it is

incomplete. We are unable to determine whether complainant is entitled

to any compensatory damages. This lack in the record is attributable to

the agency's failure to properly inform complainant of the information

she should provide. As such, we find that the agency's decision

that complainant is not entitled to compensatory damages is premature.

Therefore, we hereby VACATE the FAD and REMAND the issue of compensatory

damages for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following actions:

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall notify complainant of her right to present

evidence to the agency regarding her claim for compensatory damages,

including evidence to substantiate the extent of the increase in

complainant's child-care expenses attributable to the agency's

retaliatory change in her work schedule. The letter soliciting this

information shall be sent to complainant's representative, as well as

complainant. Within forty-five (45) calendar days of receipt of this

letter, complainant shall provide evidence that the damages claimed

are a result of the agency's discrimination and evidence of the amount

of claimed damages. Within thirty (30) calendar days of submission

of such evidence, the agency shall issue a final agency decision on

this issue, with appropriate appeal rights to the Commission.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled �Implementation of the Commission's

Decision.� The report shall include supporting documentation verifying

that the above actions have been taken, including documentation

establishing that complainant has been notified of her right to present

compensatory damages evidence and a copy of the agency's new final

decision.

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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:

July 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 Complainant also alleges on appeal that the agency never offered

to reinstate her to her regular duty hours, as ordered by the prior

decision. A review of the Commissions compliance file on this case

establishes that complainant resigned shortly after filing her complaint

and therefore could not be reinstated to her original duty hours.

If complainant nonetheless believes that the agency has failed to comply

with the prior order, we advise her to file a petition for enforcement,

as described in our regulations. See 29 C.F.R. � 1614.503.

3 It is not clear from the record when complainant's current

representative became involved in her case, or when the prior

representative ceased to be involved.