Joseph Poirrier, Appellant,
v.
Jesse Brown, Secretary, Department of Veterans Affairs, Agency.

Appeal No. 01933308
Agency Nos. 91-656; 91-785; 91-1096

INTRODUCTION

Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaints of unlawful employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000eetseq. and §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791etseq. The final agency decision is dated May 27, 1993. The appeal was postmarked June 14, 1993. Accordingly, the appeal is timely, see29 C.F.R. §1614.402(a), and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUES PRESENTED

The issues on appeal are whether the agency properly dismissed appellant's complaints on the grounds that appellant failed to accept a certified offer of full relief, and whether the agency properly dismissed one of appellant's complaints on the grounds that the complaint states the same claim as a pending complaint.

BACKGROUND

The record shows that from October 12, 1990 through May 30, 1991, appellant filed six formal complaints of discrimination which are relevant to the instant appeal. The complaints were processed as Agency Case Nos. 91-656, 91-785, 91-1096 and 91-1206, and variously alleged discrimination based on sex (male), disability (unspecified), and/or reprisal (prior EEO activity).

The record shows that during the processing of these six complaints, the agency issued several final agency decisions, accepting some allegations and rejecting others based on various procedural grounds. Appellant appealed the agency's final decisions to this Commission, which affirmed the agency in some cases, and reversed the agency in others. According to the agency, on July 15, 1991, appellant was removed from employment with the agency, and on September 4, 1991, appellant filed a seventh complaint, Agency Case No. 92-1206, regarding the termination. The record does not contain a copy of this complaint. The agency states that on March 18, 1993, it issued a final decision on this complaint, which appellant appealed to the Merit Systems Protection Board.1

With respect to the first six complaints, the record shows that on May 12, 1992, appellant timely requested a hearing before an EEOC Administrative Judge (AJ) on all the outstanding issues raised in his complaints. Thereafter, by letter dated November 24, 1992, the agency transmitted appellant's hearing request to the Denver District Office of the EEOC, for appointment of an AJ. In its transmittal letter, the agency requested that all the complaints be joined for one hearing. By letter dated February 5, 1993, the AJ acknowledged receipt of the hearing request on November 30, 1992. Therein, the AJ notified the parties that to facilitate the hearing, he had assigned simplified case numbers to the pending complaints, and determined that the following issues remained to be decided:

Case 1 (complaint dated October 12, 1990, EEOC File No. 320-93-8079X):

On September 12, 1990, the Shop Foreman made negative comments regarding complainant's worth as an employee in the presence of other employees.

Cases 2 and 3 (two complaints dated October 26, 1990, EEOC File No. 320-93-8080X):

On September 28, 1990, the Chief of Engineering Service spoke to complainant in a loud voice.

On September 18, 1990, complainant overheard a conversation between the General Foreman (GF) and the Chief Engineer in which they stated that 'troublemakers' should be fired.

On September 26, 1990, complainant learned from a coworker that the GF had instructed that employee to discourage complainant from entering the electric shop.

Case 4 (complaint dated November 26, 1990, EEOC File No. 320-93-8082X):

The AJ found that no issues remained because the complaint had been disposed of by separate final agency decisions, and any appeal from such decisions had either been completed or the time for appeal had passed without any appeal being filed.

Case 5 (complaint dated April 12, 1991, EEOC File No. 320-93-8083X):

On March 21, 1991, two Engineering Service Foremen entered complainant's assigned work area, said 'Good morning,' looked at complainant, and made some comments complainant could not hear or understand. Complainant claims they had no business entering complainant's work area and that their actions were in retaliation for complainant's numerous prior EEO complaints. Complainant also alleges that another Engineering Service employee, on the same date, was starting at complainant through the scheduling window.

Case 6 (formal complaint dated May 30, 1991, EEOC File No. 320-93-8084X):

Complainant was subjected to reprisal for his prior EEO complaints and to disability discrimination when he was offered the choice between accepting a downgrade, disability retirement, or separation from the agency.

The AJ also requested that each party provide a statement as to what would constitute full relief of the above described issues. By letter dated March 17, 1993, appellant specified the relief-including compensatory damages-that he would be willing to accept in resolution of the above complaints. On March 29, 1993, the agency transmitted to appellant a settlement agreement, which had been certified as an offer of full relief by an appropriate agency official on March 25, 1993, and which provided that the agency agreed to the following:

1. Provide the complainant with a formal letter of apology from the appropriate parties regarding improper remarks that initiated the above cited complaints.

2. Ensure that any alleged inappropriate conduct by supervisors towards the complainant will cease immediately, and supervisors are counseled regarding the policies, regulations, and requirements of all matters pertaining to the prevention of harassment in the workplace.

3. Provide the complainant with a fair and equitable work environment, free from harassment or any other discrimination based on race, color, religion, sex, national origin, age, handicapping condition or reprisal for filing this complaint.

4. Payment of reasonable attorney's fees incurred as a result of filing and processing the above identified discrimination complaints in accordance with EEOC Regulation 29 C.F.R. 1614.

In exchange for the agency's promises, the offer provided that appellant agreed to withdraw the above referenced complaints in their entirety, and not to institute further action on the complaints. In addition, the agency's transmittal letter stated that item 3 would be applicable only if appellant were to return to work at the facility, by prevailing on his pending termination complaint (which was separate from the instant complaints), and that it did not constitute an offer to return him to his previous employment. The agency also advised appellant that failure to accept the settlement offer within thirty (30) days of receipt would cause the complaints to be cancelled. The record shows that by letter dated March 29, 1993, the agency sent the following to the AJ: a copy of the agency's transmittal letter, the certification of full relief, and the settlement agreement.

On April 1, 1993, appellant received the settlement offer and certification of full relief. There is no evidence in the record that appellant responded to the agency's offer within the thirty (30) day time frame. Accordingly, on May 27, 1993, the agency issued its final decision dismissing appellant's complaint on the grounds that appellant failed to accept a certified offer of full relief within the thirty (30) day time limitation. 29 C.F.R. §1614.107(h). In addition, citing 29 C.F.R. §1614.107(a), the agency dismissed Case 6 on the grounds that it was identical to appellant's seventh complaint, which was pending on appeal before the MSPB. In its decision, the agency found that both complaints concerned the same issue: whether the decision to terminate appellant was due to reprisal and whether adequate attempts had been made to accommodate appellant's disability prior to the termination. This appeal followed.

ANALYSIS AND FINDINGS

The first issue is whether the agency properly dismissed appellant's complaints on the grounds that appellant failed to accept a certified offer of full relief within the applicable time frame. 29 C.F.R. §1614.107(h).

An agency may not make a certified offer of full relief outside the time limits set forth in the Commission's regulations. Specifically, 29 C.F.R. §1614.107(h) provides that a certified offer of full relief must be made before the complainant is notified that the investigation is completed and that s/he may request a hearing before an EEOC Administrative Judge (AJ).

Notwithstanding the above provision, however, an EEOC AJ-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 AJ without further processing of the case. To do so, the agency unilaterally and unconditionally must promise, in writing, to provide the complainant with the full and complete remedy defined by the AJ. If the agency does so, the AJ 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 Office of Federal Operations.

In this case, the AJ requested that each party provide him with a statement as to what would constitute the full and complete remedy for appellant's complaints. Rather than provide the requested statement, the agency instead issued a certified offer of full relief-almost one year after appellant timely had requested a hearing on his complaints. Because the agency tendered its offer outside the appropriate time limits, the offer was invalid and the agency therefore improperly dismissed appellant's complaint for failure to accept an offer of full relief. Consequently, the agency's decision is reversed and the consolidated complaints are remanded for continued processing in accordance with the Order below.

The second issue is whether the agency properly dismissed appellant's May 30, 1991 complaint on the grounds that it states the same claim as a pending complaint. EEOC Regulation 29 C.F.R. §1614.107(a) provides, in relevant part, that the agency shall dismiss a complaint or portion of a complaint which states the same claim that is pending before or has been decided by the agency or Commission. In addition, EEOC Regulation 29 C.F.R. §1614.302(c) sets forth the requirements for dismissal of an EEO complaint when the matter has been raised before the MSPB.

Here, the agency found that the complaint dated May 30, 1991 (EEOC no. 320-93-8084X) was identical to appellant's complaint filed on September 4, 1991 (Agency No. 92-1206, EEOC No. 320-93-8085X). In its final decision, the agency found that both complaints concerned the same matter: whether the decision to terminate appellant was due to reprisal and whether adequate attempts had been made to accommodate appellant's disability prior to the termination. The agency further states that on March 18, 1993, it issued a final decision on the September 4, 1991 complaint, which appellant then appealed to the MSPB.

From the agency's characterization of the issues, it appears that the issue of the May 30, 1991 complaint was inextricably intertwined with the issue of the September 4, 1991 complaint. That is, a determination on the termination issue also would include a determination on the reasonable accommodation issue. The Commission has held that allegations of discrimination which are not independently appealable to the MSPB, but are inextricably intertwined with an action such as a removal, which is appealable to the MSPB, should be processed in that forum. See Bivens v. Department of the Navy, EEOC Request No. 05890476 (April 30, 1990).

Based on the record before us, however, we are unable to determine whether the agency's dismissal of the May 30, 1991 complaint was proper. The record does not contain a copy of either complaint, or any documentation concerning appellant's MSPB appeal on the September 4, 1991 complaint. Because the agency failed to provide sufficient documentation to substantiate its assertions that the complaints state the same claim, the Commission finds that the dismissal of appellant's May 30, 1991 complaint was improper and remands the complaint to the agency for further processing in accordance with the Order below.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's consolidated complaints for failure to accept a certified offer of full relief was improper and is REVERSED. In addition, the agency's decision to dismiss appellant's May 30, 1991 complaint on the grounds that it states the same claim as a pending complaint was improper and is REVERSED. The complaints are REMANDED to the agency for further processing in accordance with this decision and applicable regulations.

ORDER

The agency is ORDERED to process the remanded allegations in accordance with 29 C.F.R. §1614.109etseq. 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 AJ 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, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS 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 WITHINTWENTY (20) CALENDARDAYS 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 (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)

*7 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. §2000eetseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

May 05, 1994

1. In his recent correspondence with this Commission, appellant indicates that on March 15, 1994, he filed a civil action in federal district court regarding his removal.