01980941_r
11-20-1998
Robert A. Nance, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Robert A. Nance, )
Appellant, )
)
v. ) Appeal No. 01980941
) Agency No. 93-0164
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On November 8, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") dated September 23, 1997, pertaining
to his 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged
that he was subjected to discrimination on the bases of race (White),
sex (male), age (DOB 7/24/44), and physical disability (occupational
diseases) when on May 27, 1992, he received an "unacceptable" rating on
his performance evaluation.
The record indicates that appellant's complaint was scheduled for a
hearing before an EEOC Administrative Judge ("AJ"). By letter dated
August 22, 1995, the AJ advised both parties as to the full and complete
remedy to which appellant would have been entitled in the event that
a finding of discrimination was made. The AJ noted that if the agency
elected to offer appellant what was determined to be full relief, she
would remand the case back to the agency with a recommendation that it be
dismissed as moot. Further, the AJ advised that if appellant failed to
accept the offer of full relief, it would likely result in the dismissal
of his complaint pursuant to 29 C.F.R. �1614.107(h).
On August 28, 1995, the agency, in writing, unilaterally and
unconditionally promised to implement the AJ's findings as to what would
have been full relief. However, instead of implementing the terms of the
full relief offer, the agency underwent negotiations with appellant in an
attempt to come to an agreement on the wording of the full relief offer.
The record shows that this negotiation took place for almost two years.
Although appellant and the agency never reached a consensus, on July 28,
1997, the agency sent appellant a final certified offer of full relief.
The terms of the offer were consistent with those expressed by the AJ,
and informed appellant that he had thirty (30) days after receipt to
accept the offer or his complaint would be dismissed in accordance with
29 C.F.R. �1614.107(h).
By letter dated September 17, 1997, appellant rejected the agency's
certified offer, asserting that it did not include all the relief
to which he was entitled. On September 23, 1997, the agency issued
a final decision dismissing appellant's complaint pursuant to 29
C.F.R. �1614.107(h), for refusing a certified offer of full relief.
Notwithstanding EEOC Regulation 29 C.F.R. �1614.107(h), which provides
that an offer of full relief must be made before an agency issues
the notice required by 29 C.F.R. �1614.108(f) wherein a complainant is
notified that the investigation is completed and that s/he may request a
hearing, an AJ, prior to the hearing, may advise the parties as to the
full and complete remedy to which a complainant would be entitled upon
a finding of discrimination. See 29 C.F.R. �1614.501. At that point in
the proceedings, the agency may elect to provide the complainant the full
and complete remedy as defined by the AJ, without further processing of
the merits of the case. Poirrier v. Department of Veterans Affairs,
EEOC Appeal No. 01933308 (May 5, 1994). Poirrier requires that the
agency must promise -- unilaterally and unconditionally -- in writing
to provide the complainant with the full and complete remedy defined
by the AJ. If the agency does so, the AJ may remand the case to the
agency to dismiss the complaint as moot. If the agency later fails to
provide the complainant with the full and complete remedy as promised,
the complainant may file an appeal with the Office of Federal Operations.
In the instant case, we find that the agency failed to comply with the
narrow exception to 29 C.F.R. �1614.107(h) carved out by Poirrier and
its progeny. The Poirrier exception permits dismissal of a complaint,
pursuant to 29 C.F.R. �1614.107(e), on the grounds that it was rendered
moot by the agency's unilateral and unconditional promise to implement
the AJ's findings of what would constitute full relief. Here, the agency
dismissed appellant's complaint. Moreover, we find that the agency's
delay in presenting appellant the certified offer runs counter to the
underlying purpose of the exception, i.e., the speedy resolution of an
EEO complaint. Based on the foregoing, we find that the agency erred
in dismissing appellant's complaint for failure to accept a certified
offer of full relief.
Accordingly, the agency's decision to dismiss appellant's complaint
was improper, and is hereby REVERSED. 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 request assignment of an Administrative Judge
from the proper District Office to conduct a hearing in the present case.
The agency shall submit the request within fifteen (15) calendar days
of the date this decision becomes final. A copy of the agency's request
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:
November 20, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations