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