01982157
04-02-1999
Steven A. Miller, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven A. Miller v. United States Postal Service
01982157
April 2, 1999
Steven A. Miller, )
Appellant, )
)
v. ) Appeal No. 01982157
) Agency No. 4-G-780-0249-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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 final agency decision was issued on December
29, 1997. The appeal was postmarked January 24, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that he failed to accept a certified offer of
full relief.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 9, 1997.
On September 25, 1997, appellant filed a formal EEO complaint wherein he
alleged that he was discriminated against in reprisal for his previous EEO
activity when on June 5, 1997, he was directed to take a telephone call
off his travel voucher. Appellant requested as relief that he be free
from a hostile work environment with regard to the daily screening of
his work and documents, and that he be treated fairly and with respect.
On November 17, 1997, the agency extended to appellant a settlement offer,
which the agency subsequently certified as full relief. The agency
stated that failure to accept the offer within 30 days of its receipt
would result in the dismissal of the complaint. The offer provided
that appellant would receive (1) compensation of $8 for one-half of the
telephone call made on May 28, 1997, since it was a partial business call;
(2) compensation of $6.20 for the return mileage to his residence on
May 30, 1997; (3) appellant's consideration of using agency owned or
leased phone lines when placing business phone calls; (4) appellant's
understanding that management has the responsibility to review and ensure
that travel vouchers are completed properly and within regulations; and
(5) appellant's understanding that management is committed to treating him
with dignity and respect as well as all other employees and he will not
be retaliated against as a result of filing the instant EEO complaint.
In its final decision dated December 29, 1997, the agency dismissed
the complaint on the grounds of failure to accept a certified offer of
full relief. The agency stated that appellant received the certified
offer of full relief on November 20, 1997, and declined the offer by
letter dated December 8, 1997.
On appeal, appellant states that the instant complaint was filed
shortly after the agency adopted the EEOC Administrative Judge's
recommended decision in Agency No. 4-G-780-1018-95 finding that he had
been discriminated against in reprisal for his previous EEO activity.
Appellant maintains that the alleged discrimination in the instant
complaint constitutes a violation of the remedial actions set forth by
the Administrative Judge. Appellant notes that the remedial relief was
intended to prevent further retaliation against him by his supervisor.
According to appellant, the agency's offer to treat him with dignity
and respect provides him nothing more than that to which he already
is entitled. Appellant argues that the agency's failure to prevent
retaliation against him warrants an award of compensatory damages.
Appellant also requests that he be reimbursed for business and mileage
expenses denied by his supervisor.
In response, the agency asserts that appellant's contentions on appeal are
not related to the complaint at issue, but rather concern the complaint
in Agency No. 4-G-780-1018-95.
ANALYSIS AND FINDINGS
The decision to dismiss a complaint for failure to accept full relief
should be made by the agency when an appellant refuses to accept
an offer of full relief made in compliance with EEOC Regulation 29
C.F.R. �1614.107(h). Under the regulation, the agency must provide
written certification to the appellant that its offer constitutes full
relief and that failure to accept the offer within thirty days of its
receipt may result in dismissal of the complaint. When an appellant
refuses the offer, the agency may dismiss the complaint.
When an appellant appeals, objecting to the dismissal of a complaint under
the above provisions, the Commission will uphold the agency's dismissal
if 1) the certification and offer were properly made in accordance with
the regulation, and 2) the offer constitutes full relief given the facts
of the case.
In this case, the record shows that the certification was made by an
official authorized to certify that an offer constitutes full relief.
The certification accompanied the offer. Therefore, the agency's
offer satisfied the procedural requirements of a certified offer of
full relief.
Full relief must be evaluated in terms of whether it includes everything
to which the complainant would be entitled if a finding of discrimination
were entered with respect to all of the allegations in the complaint, See
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Merriell v. Department
of Transportation, EEOC Request No. 05890596 (August 10, 1989), and
it must be specifically tailored to cure the particular source of the
identified discrimination and minimize the chance of its recurrence.
In Albemarle, the Court held that the purpose of Title VII is to
make victims whole. 422 U.S. at 418-19. This requires eliminating
the particular unlawful employment practice complained of, as well as
restoring the victim to the position he or she would have occupied were
it not for the unlawful discrimination. Id. at 420-21.
Appellant alleged that he was subjected to discrimination when he was
directed to take charges for a telephone call off his travel voucher.
We find that although the agency's settlement offer satisfied the
procedural requirements of a certified offer of full relief, the offer may
not provide appellant with full relief because he requested compensatory
damages, albeit for the first time on appeal. Given that appellant
has made such a claim, the agency must request that appellant provide
objective evidence linking those damages to the adverse actions at issue
herein. See Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993).
Finally, we note that this decision does not, for any purpose, decide
the merit of appellant's allegations of discrimination. We merely find
that in the event appellant was subjected to discrimination with regard
to his allegation, the existing record does not conclusively establish
that the agency's offer would place him in the position he would have
occupied absent the alleged discriminatory action, at a minimum, due to
the outstanding issue of compensatory damages. Accordingly, the agency's
dismissal of the complaint is REVERSED. This complaint is hereby REMANDED
for further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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:
April 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations