01973236
07-25-2000
Sandie Boydston, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Sandie Boydston v. Department of Agriculture
01973236
July 25, 2000
.
Sandie Boydston,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01973236
Agency No. 911101
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of national origin (Hispanic), sex (female), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant contends that the agency improperly denied her an
award of compensatory damages after entering into a settlement agreement
in which it undertook to pay �proven compensatory damages.� The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
in part, REVERSES in part and REMANDS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time period, complainant
was employed as a GS-6 Technical Assistant at the agency's Albuquerque,
New Mexico, Soil Conservation Service facility. In 1991 she sought to
have her position upgraded to GS-7. In July, 1991 the agency denied
that request. Believing herself to be a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint which the agency accepted for investigation. At the conclusion
of the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested a hearing but
before the hearing was held, the agency dismissed the complaint on
procedural grounds. That dismissal was reversed by this Commission<2>
and the complaint was remanded for a hearing.
Before the hearing was held, the parties entered into a settlement
agreement. The agreement provided for, inter alia, the agency to pay
to complainant �proven compensatory damages to the accepted issue of
this complaint.� Complainant submitted to the agency proof of damages,
seeking an award of $372,207.52 in past pecuniary losses, future pecuniary
losses and nonpecuniary losses. Included in the past pecuniary losses
category, was a claim for �legal expenses� in the amount of $16,387.18.
In a final agency decision dated February 11, 1997, the agency rejected
complaint's compensatory damages claim in its entirety on the ground
that complainant had failed to prove a causal relationship between the
discriminatory conduct and the damages claimed. The agency also relied
on the alternative ground that compensatory damages could not be awarded
because the discriminatory conduct upon which the damages claim was
premised occurred prior to the effective date of the Civil Rights Act
of 1991.
From the agency's decision denying an award of compensatory damages,
complainant brings the instant appeal.
ANALYSIS AND FINDINGS
We find that the agency's position that the Civil Rights Act of 1991
does not authorize an award of compensatory damages here is well taken.
There is no dispute that the discriminatory act upon which complainant's
claim is premised, i.e., the denial of her request that her position be
upgraded, occurred in July, 1991. The law is clear beyond peradventure
that where �the discriminatory act occurred prior to November 21,
1991, the effective date of the Civil Rights Act of 1991, [complainant]
is not eligible for [compensatory] damages.� Malek v. Department of
Health and Human Services, EEOC Petition No. 04990009 (August 19, 1999)
citing Landgraf v. USI Film Products, 511 U.S. 244, 286 (1994).
Because complainant could not have been awarded compensatory damages
had she prevailed in the administrative EEO process or in court, the
agency could not legally bind itself to pay compensatory damages in
a settlement agreement. See, Terracina v. Dept. of Health and Human
Services, EEOC Request No. 05910888 (March 11, 1992)(�In a settlement
agreement, an agency cannot incur a financial liability that the agency
is not legally obligated to incur.�); EEOC EEO Management Directive for
29 C.F.R. Part 1614, Chapter 12, Section II (May 17, 2000 )(�The relief
provided by an agency to settle an EEO dispute cannot be greater than
the relief a court could order if that particular dispute were to go to
trial.�) Accordingly, the agency's denial of an award of compensatory
damages is affirmed.
Complainant's request for an award of attorney's fees raises different
issues. Attorney's fees may be awarded to the prevailing party in
a Title VII action, irrespective of the applicability of the Civil
Rights Act of 1991. This is so even where, as here, a discrimination
action is settled prior to a determination that the agency is guilty of
discriminatory employment practices. Hewitt v. Helms, 482 U.S. 755,
760-61 (1987); Eaglin v. United States Postal Service, EEOC Request
No. 05910604 (August 22, 1991). We find that the agency improperly
rejected complainant's application for an award of attorney's fees on
the ground that compensatory damages were not available to complainant.
However, we are unable to determine, on the record before us, whether
complainant is a �prevailing party� and thus entitled to an award
of attorneys fees. That determination will require an analysis of
the terms of the settlement agreement, an analysis we cannot conduct
because the agreement has not been included in the record on appeal.
Nor can we assess the appropriate amount of any attorney's fee award
because the record does not contain the necessary detailed information on
the number of hours reasonably expended or the applicable hourly rates
for the work performed. Accordingly, the matter shall be remanded to
the agency to consider whether and in what amount complainant shall be
awarded attorney's fees.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
the agency's decision is AFFIRMED with respect to compensatory damages
and VACATED and REMANDED with respect to attorney's fees.
ORDER
Complainant's attorney is ORDERED to submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days
of this decision becoming final. The agency is ORDERED to issue a
final decision within thirty (30) calendar days of its receipt of that
statement. The decision shall determine whether, as a consequence of
the settlement, complainant is a prevailing party in this matter and, if
she is determined so to be, the amount of attorney's fees to be awarded.
The decision shall clearly set forth the calculations, amounts disputed,
reasons for any amounts denied, and all other relevant information
regarding the amount of attorney's fees awarded. The decision shall
provide complainant with notice of her right to appeal the decision to
the Commission. The agency shall ensure that the record of this matter
includes a full copy of the subject settlement agreement at issue herein.
A copy of the agency's final decision must be sent to the Compliance
Officer as referenced below.
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 25, 2000
__________________
Date
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 Boydston v. Department of Agriculture, EEOC Appeal No. 01933817 (January
25, 1994) req. for reconsid. denied Request No. 05940416 (December 22,
1994).