01986647_r
10-06-1999
Sharon I. Watson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sharon I. Watson, )
Appellant, )
)
v. ) Appeal No. 01986647
) Agency No. 98-0426
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
On August 31, 1998, appellant filed a timely appeal of a July 27, 1998
final agency decision, which was received by appellant on August 3,
1998, dismissing her complaint, pursuant to 29 C.F.R. �1614.107(h),
for failure to accept an offer of full relief.
In its final decision, the agency identified the allegation of appellant's
November 26, 1997 complaint as whether appellant was discriminated
against based on her disability (Sarcoidosis and Ankylosing Spondylitis
- restrictive lung disease and severe arthritis) when on July 28, 1997,
her request for a larger office space closer to the elevators in order
to accommodate the high volume of charts she reviewed and the distance
to her office was denied. The agency stated that on February 5, 1998,
appellant received a certified offer of full relief regarding her
complaint, but failed to accept the offer.
The agency's offer provided that appellant would be transferred to room
2112 which was located within 195 feet of the elevators; and if that
distance were proven to be too strenuous (through medical documentation),
a mobile chair would be provided to her. Therein, appellant was also
informed that if she failed to accept the offer within 30 days of its
receipt, it could lead to dismissal of her complaint. On March 4, 1998,
appellant rejected the offer indicating that relocating her office 195
feet from the elevator did not accommodate her disability.
On appeal, appellant contends that she, subsequently, moved to room 2112,
described in the agency's offer, but the distance to the room from the
elevator is still too strenuous. Appellant also asserts that she is
not able to use a mobile chair because of the disability of her neck,
i.e., she is unable to turn her head, due to the stiffness of her neck,
to make sure she is passing people at a safe clear distance.
Generally, the decision to dismiss a complaint for failure to accept an
offer of full relief should be made by the agency when appellant refuses
to accept an agency's offer of full relief pursuant to EEOC Regulation
29 C.F.R. �1614.107(h). Specifically, the agency must provide written
certification to appellant that its offer constitutes full relief.
When appellant refuses to accept the offer within 30 days of its receipt,
the agency shall dismiss the complaint. Although an agency may fully
comply with 29 C.F.R. �1614.107(h), an appellant who genuinely disputes
that the agency's offer constitutes full relief is not obligated to
accept it and the matter becomes a factual issue to be resolved on appeal.
A full relief offer must be evaluated in terms of whether it offers
everything that the complainant would be entitled to in the event a
finding of discrimination was made with respect to all the allegations.
See 29 C.F.R. �1614.107(h) and .501. The completeness of a remedy is
measured by the "make whole" yardstick enunciated in Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418-419 (1975). A make whole remedy is
measured as follows: if the case proceeds to a final action on the merits
and there is a finding of discrimination, would there be a remedy which
provides more relief than that offered by the agency. See also Merriell
v. Department of Transportation, EEOC Request No. 05890596 (August 10,
1989).
Upon review, we find that there appears to be a question as to whether
the agency's offer provided appellant with reasonable accommodation.
Appellant disputes that the accommodation was appropriate, claiming that
the office provided was still too distant from the elevators and that
she would not be able to effectively use a mobile chair. Consequently,
we find that the agency's decision to dismiss appellant's complaint
for failure to accept an offer of full relief is not supported by the
present record. The agency has the burden of providing evidence and/or
proof to support its final decisions. Ericson v. Department of the
Army, EEOC Request No. 05920623 (January 14, 1993); Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992).
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 acknowledgment 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:
October 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations