Kathleen A. Carle, Appellant, v. Sean C. O'Keefe, Acting Secretary, Department of the Navy, Agency. Appeal No. 01922369 Agency No. DON 92-00251-015 INTRODUCTION On April 10, 1992 Kathleen A. Carle (hereinafter referred to as appellant) timely initiated an appeal under 29 C.F.R. Part 1613 to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Acting Secretary, Department of the Navy (hereinafter referred to as the agency) dated March 25, 1992. The agency's decision cancelled appellant's complaint pursuant to 29 C.F.R. 1613.215(a)(7) for failure to accept an offer of full relief. Appellant's appeal was initiated pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. This appeal is accepted for decision by the Commission in accordance with EEOC Order No. 960, as amended.1 ISSUE PRESENTED The issue presented is whether the agency properly cancelled appellant's complaint on the grounds that she failed to accept a certified offer of full relief. BACKGROUND Appellant is a Quality Assurance Specialist, GS-11, in the Puget Sound Naval Shipyard, Code 136.1, Quality Assurance Branch. Appellant filed a complaint in January 1992 alleging she was discriminated against on the bases of sex and reprisal when she was stared at, watched, asked out and otherwise sexually harassed over the previous eight months by a male co-worker. Appellant alleged that her supervisor was notified of this and did not stop the harassment. Appellant further contended that on December 5, 1991, her supervisor threatened to fire her and took away her statistical process control (SPC) assignment because she refused to work with the above co-worker. The SPC program is a major portion of the co-worker's job description. Previously, appellant filed pre-complaints with regard to her formal complaint. She contended that on December 13, 1991, she was bullied by her supervisor when he temporarily blocked her passage in a hallway. During EEO counseling, appellant complained of numerous specific incidents of harassment, both sexual and nonsexual. As corrective action, appellant wrote in her complaint that she wanted (1) a finding of sexual harassment and reprisal against the agency, (2) her supervisor and co-worker to receive appropriate administrative action, (3) to not be required to work with her co-worker or supervisor, (4) to be guaranteed a non-hostile work environment free from reprisal, (5) be awarded damages as compensation for emotional distress, and (6) attorney fees. By letter dated February 7, 1991, the agency defined appellant's complaint and provided appellant a certified offer of full relief. It defined the complaint as concerning (a) whether appellant was discriminated against on the basis of sex (female) when on December 5, 1991 she was ordered by her supervisor and another management official to attend a presentation being conducted by the co-worker who allegedly sexually harassed appellant, and (b) whether appellant was discriminated against on the bases of sex (female) and reprisal (EEO activity) when on December 13, 1991, she was blocked in the hallway by her supervisor. As relief, the agency offered to: (1) assign appellant full time to quality assurance training and indoctrination within Code 133/136 of the Quality Assurance Office, (2) not require appellant to work directly for the supervisor cited in her complaint (Head of the Analysis Branch) while assigned in Code 133/136, (3) appellant may be required to work with any member of the Quality Assurance staff and/or provide training to them during the accomplishment of her official duties, (4) appellant recognizes and understands that management has the right to assign work in accordance with 5 U.S.C. 71,2 (5) management recognizes its responsibility to provide employees a work environment free of harassment, (6) carry out the above provisions within twenty (20) calendar days from the date of this agreement, (7) pay reasonable attorney fees/costs in accordance with the provisions of 29 C.F.R. 1613.271(d), and (8) the agency acknowledges its obligation not to retaliate against appellant for filing a discrimination complaint. The agency warned appellant that if she did not accept the offer within fifteen (15) days of its receipt, her complaint would be cancelled. In reply, appellant wrote that the agency defined her complaint too narrowly. Specifically, she stated the definition did not reflect the information in the counselor's report which detailed incidents of ongoing alleged harassment from before April 1991 and onward, and that her supervisor was made aware of the harassment in April 1991 and failed to provide a harassment free environment. Appellant wrote that she was not provided full relief. After receiving appellant's response, the agency issued a FAD cancelling appellant's complaint for failure to accept an offer of full relief. On appeal, appellant argues that she was not offered full relief. She contends, inter alia, that full relief includes payment of damages to compensate her for continued distress and related medical costs. In response to appellant's appeal, the agency argues appellant was offered full relief. It states, inter alia, that appellant is not entitled to damages. It reasons that she failed to show she suffered any monetary injury. ANALYSIS AND FINDINGS Generally, the decision to cancel 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 pursuant to EEOC Regulation 29 C.F.R. 1613.215(a)(7). Specifically, the agency must provide written certification to the appellant that its offer constitutes full relief, and that failure to accept the offer may result in cancellation of the complaint. When an appellant refuses to accept the offer within 15 days of its receipt, the agency may cancel the complaint. The agency complied with the procedural requisites of 29 C.F.R. 1613.215(a)(7). Full relief is defined as that relief that would have been available to appellant had she prevailed on every issue in her complaint. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). In Albemarle, the court held that the purpose of Title VII is to make victims whole. Albemarle, 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. Albemarle, 422 U.S. at 420-21. Accordingly, the offer of full relief must be evaluated in terms of whether or not 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. Deborah Merriell v. Department of Transportation, EEOC Request No. 05890596 (August 10, 1989). The agency defined the complaint under the processing dictates of 29 C.F.R. Part 1613. It should have initially reviewed the complaint and referred to the counselor's report to clarify general or vague allegations. If reference to the counselor's report did not sufficiently clarify allegations, the agency should have consulted with the complainant. EEOC Federal Sector Complaint Processing Manual, Management Directive 107, (EEO MD-107), Chap. 6 1.4(g) (Sept. 1987).3 The agency's definition of appellant's complaint was incomplete. Her allegation of ongoing sexual and nonsexual harassment was not defined. Many instances are detailed adequately in the counselor's report, and others referenced therein may have been further clarified upon consultation with appellant. On remand, however, the agency must process the complaint under 29 C.F.R. Part 1614. EEOC Management Directive for 29 C.F.R. Par 1614, EEO MD-110, Chap 2, III (October 22, 1992) provides that at the counseling stage, the EEO counselor must be certain that the complaint's issues are clearly defined and that the complainant agrees on what issues are to be the subject of the inquiry and subsequent attempts at resolution. It also provides that the agency will dismiss an issue in an EEO complaint that has not been discussed with the counselor and if it is not like or related to a matter discussed with the counselor. EEO MD-110, Chap 2, III states that like or related matters may be referred back to the counselor for counseling. On remand, the agency must reprocess appellant's claims from the EEO counseling stage and follow the dictates of EEO MD-110. This shall include appellant meeting again with an EEO counselor, and a revised counselor's report being issued. The relief offered by the agency does not sufficiently address appellant's allegation of ongoing harassment. While the offer referenced the agency's general responsibility to provide employees a work environment free of harassment, it does not provide concrete steps to stop the alleged harassment. In order to constitute make whole relief, the offer should be specifically tailored to cure or protect the particular sources of identified alleged discrimination and to minimize the chance of their reoccurrence. Bell v. U.S.P.S., EEOC Request No. 05880180 (July 27, 1988). The offer also failed to address appellant's request for compensatory damages. The Commission has determined that the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 ('CRA') makes compensatory damages available to federal sector complainants in the administrative process. Richard Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992).4 Section 102 of the CRA provides that under Title VII, a complainant may recover compensatory damages in cases of intentional discrimination.5 Compensatory damages may be awarded for future pecuniary loses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses so as to make a complainant whole. See CRA, 102(b)(3). Compensatory damages are only available, however, for alleged discriminatory conduct occurring on or after November 21, 1991.6 Prior to the issuance of the certified offer of full relief, appellant requested that she be awarded damages for emotional distress. Accordingly, prior to making its offer of full relief, the agency should have requested from appellant objective and other evidence of the alleged damages incurred from incidents which took place on or after November 21, 1991. Objective evidence could have taken the form, if appellant obtained medical care, of receipts and/or bills for medical care, medication, and transportation to the doctor. Other evidence could have taken the form of a statement by appellant describing her emotional distress, and statements from witnesses, both on and off the job, describing the distress. To properly explain the emotional distress, such statements should include detailed information on physical or behavioral manifestations of the distress, if any, and any other information on the intensity of the distress, information on the duration of the distress, and examples of how the distress affected appellant day to day, both on and off the job. In addition, the agency should have asked appellant to provide objective and other evidence linking expenses, if any, and the distress to the alleged unlawful discrimination occurring on or after November 21, 1991. Such a showing would have been sufficient to require the agency to address the issue of compensatory damages in its offer of full relief. The relief offered by the agency, however, did not address the issue of compensatory damages. Because the agency's offer, inter alia, did not address damages, the offer did not constitute full relief, and appellant was under no obligation to accept the offer.7 Accordingly, the agency's decision to cancel the complaint for failure to accept a certified offer of full relief is VACATED. See 29 C.F.R. 1613.215(a)(7). The complaint is hereby REMANDED to the agency for further processing in accordance with this decision and the Order below. ORDER The agency is ORDERED to process the complaint in accordance with 29 C.F.R. 1614.105, et seq., EEO MD-110, Chap 2, III and the instructions in this decision. This shall include appellant meeting with an EEO counselor and a revised counselor's report being issued. The agency shall schedule an appointment for appellant to see an EEO counselor 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 to appellant scheduling an appointment for her to see an EEO counselor 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 (K1092) 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. RECONSIDERATION (M1092) 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. RIGHT TO FILE A CIVIL ACTION (R1092) 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: (1) WITHIN NINETY (90) CALENDAR DAYS of receipt of the final decision of the agency on your complaint subsequent to this remand; or (2) AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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. 29 C.F.R. 1614.410. 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: Ronnie Blumenthal Director Office of Federal Operations January 05, 1993 Footnotes 1 1. 29 C.F.R. Part 1614 (57 Fed. Reg. 12634) became effective October 1, 1992. This rule revises the way federal agencies and the Equal Employment Opportunity Commission will process administrative complaints and appeals of employment discrimination filed by federal employees and applicants for federal employment. However, since this appeal was filed prior to the effective date of Part 1614, the Part 1613 regulations are applicable to this case. 2 2. The offer cited 5 U.S.C. 71. This section number, however, does not exist. 3. EEO MD-107 provided guidance for processing EEO claims under 29 C.F.R. Part 1613. 4. A request for the Commission to reconsider this decision was filed by the United States Postal Service in December 1992 and is still pending. The request has been assigned docket number 05930306. 5. Subsection 102(b)(1) prevents complainants from seeking punitive damages against a government, government agency or political subdivision. 6. Commission Policy Guidance on Application of Damage Provisions of the Civil Rights Act of 1991 to Pending Charges and Pre-Act Conduct (December 27, 1991). 7. Appellant requested a finding of sexual harassment and reprisal against the agency. An agency is not required, however, to admit discrimination in an offer in order for the offer to constitute full relief. Smith v. U.S.P.S. EEOC Appeal NO. 01902054 (June 11, 1990). Appellant also requested that her supervisor and the co-worker be disciplined. Discipline, however, is normally left to the discretion of the agency.