Shirley A. Moon, Appellant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionSep 13, 1999
01991775 (E.E.O.C. Sep. 13, 1999)

01991775

09-13-1999

Shirley A. Moon, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.


Shirley A. Moon v. Tennessee Valley Authority

01991775

September 13, 1999

Shirley A. Moon, )

Appellant, )

) Appeal No. 01991775

v. ) Agency No. 0626-96081

)

Craven H. Crowell, Jr., )

Chairman, )

Tennessee Valley Authority, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning 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. The appeal is accepted in

accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for mootness.

BACKGROUND

Appellant filed a formal complaint on June 26, 1996, alleging

discrimination on the basis of reprisal when she was continuously harassed

(including a three-day suspension, denial of overtime, and requirement

of Fitness for Duty Evaluation which was recorded on a video camera)

beginning in or about April 1995 through May 1996.

In its FAD, the agency dismissed the complaint for mootness. It found

that on November 2, 1998, appellant was sent a settlement agreement

which was signed by the agency. The agreement offered to:

1) pay appellant four days of pay ($486.40) for the three days of

suspension and one snow day;

2) pay appellant a lump sum for compensatory damages ($500.00), without

medical evidence, for damages appellant may have suffered; and

3) give assurances that the agency will take reasonable steps to ensure

that no reprisal will be taken against appellant.

Thereafter, the Administrative Judge issued his Notice of Remand on

November 9, 1998, which stated that during the settlement conference,

appellant rejected the agency's offer. The Administrative Judge found

that the complaint was moot for the agency's offer constituted full

relief which appellant rejected. The agency also found that appellant

was terminated by a reduction in force effective September 26, 1997 which

would mean that a final decision would not have any practical effect

since appellant is no longer employed by the agency. Therefore, the

agency dismissed appellant's complaint of discrimination on the grounds

of mootness, pursuant to 29 C.F.R. �1614.107(e). This appeal followed.

ANALYSIS AND FINDINGS

Poirrier Offer

EEOC Regulation 29 C.F.R. �1614.107(h) sets out the requirements which

an agency must follow in order to tender an offer of full relief to a

complainant. The offer must be in writing. Furthermore, it must be made

before an agency issues the notice required by 29 C.F.R. �1614.108(f),

which notifies a complainant that the investigation is completed and

that he or she has the right to request a hearing.

Notwithstanding the above provisions, however, an Administrative Judge,

prior to the hearing, may advise the parties as to the full and complete

remedy to which a complainant would be entitled should there be a finding

of discrimination. See 29 C.F.R. �1614.501. At that point, the agency

may agree to give the complainant the full and complete remedy defined

by the Administrative Judge without further processing of the case.

Poirrier v. Department of Veterans Affairs, EEOC Appeal No. 01933308

(May 5, 1994). Poirrier requires that the agency unilaterally and

unconditionally must promise, in writing, to provide the complainant

with the full and complete remedy defined by the Administrative Judge.

If the agency does so, the Administrative Judge then may remand the

case to the agency to dismiss 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 Commission.

The Commission permits such an action in recognition of the value an

Administrative Judge can bring to the process, and in recognition as

well of the Administrative Judge's responsibility to propitiate the

resolution of complaint. At the hearing stage, the Administrative Judge,

who is impartial and who has expertise in anti-discrimination law,

is qualified to determine whether an agency offer indeed constitutes

full relief for a complainant. In addition, the Administrative Judge,

through the pre-hearing conferences and first-hand discussions with the

parties, is in an excellent position to discuss the proper scope of full

relief and to explain the consequences of refusal to a complainant.

Upon careful review of the record, it appears that the conditions of

Poirrier have not been met. Contrary to the Poirrier requirements, the

record indicates that the agency, rather than the Administrative Judge,

first determined what constituted full relief and offered it to appellant.

Then the Administrative Judge found that the agency's offer constituted

full relief. This runs counter the conditions set forth in Poirrier.

See Perlingiero v. Department of the Navy, EEOC Appeal No. 01941176

(February 24, 1995).

Compensatory Damages

Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant

who establishes his or her claim of unlawful discrimination may receive,

in addition to equitable remedies, compensatory damages for past and

future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary

losses (e.g., pain and suffering, mental anguish). 42 U.S.C. �1981a(b)(3).

For an employer with more than 500 employees, such as the agency, the

limit of liability for future pecuniary and non-pecuniary damages is

$300,000. Id. In West v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June

14, 1999), the Supreme Court held that Congress afforded the Commission

authority to award such damages in the administrative process.

The particulars of what relief may be awarded, and what proof is

necessary to obtain that relief, are set forth in detail in EEOC Notice

No. N-915.002, Compensatory and Punitive Damages Available Under Section

102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the

complainant must submit evidence to show that the agency's discriminatory

conduct directly or proximately caused the losses for which damages are

sought. Id. at 11-12, 14; Rivera v. Department of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994). The amount awarded should reflect the extent

to which the agency's discriminatory action directly or proximately

caused harm to the complainant and the extent to which other factors

may have played a part. EEOC Notice No. N-915.002 at 11-12. The amount

of non-pecuniary damages should also reflect the nature and severity of

the harm to the complainant, and the duration or expected duration of

the harm. Id. at 14.

Regarding non-pecuniary damages, in Carle v. Department of the Navy,

EEOC Appeal No. 01922369 (January 5, 1993), the Commission explained

that "objective evidence" of non-pecuniary damages could include a

statement by the complainant explaining how he or she was affected

by the discrimination. Statements from others, including family

members, friends, and health care providers could address the outward

manifestations of the impact of the discrimination on the complainant. Id.

The complainant could also submit documentation of medical or psychiatric

treatment related to the effects of the discrimination. Id. Non-pecuniary

damages must be limited to the sums necessary to compensate the injured

party for the actual harm and should take into account the severity of

the harm and the length of time the injured party has suffered from the

harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652

(July 17, 1995).

In the case at hand, the Commission notes that there appears to be

confusion regarding pecuniary and non-pecuniary compensatory damages on

the part of the agency. The record indicates that appellant was asked if

she had incurred any medical expenses to which she replied that she had

not. This only addressed the pecuniary aspect of compensatory damages.

There is no indication in the record that the agency asked appellant

about her claim of emotional distress which would have addressed the

non-pecuniary damages. The agency's offer for full relief did not

indicate any evaluation of appellant's claim in order to determine the

appropriate non-pecuniary damage award. Appellant should provide the

agency with information regarding the emotional distress she has suffered

and how it was caused by the alleged harassment. Such information could

take the form of statements from the appellant, family, and friends that

indicate the impact the alleged discrimination has had on her.

CONCLUSION

Accordingly, the decision of the agency is REVERSED and REMANDED for

further processing in accordance with this decision and the proper

regulations.

ORDER

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.109. The agency shall request that the Commission

appoint an administrative judge to conduct a hearing, as previously

requested by appellant, within thirty (30) calendar days of the date this

decision becomes final. A copy of the agency's letter requesting the

appointment of the administrative judge 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:

Sept. 13, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations