CLARA A. PERLINGIERO, APPELLANT,
v.
JOHN H. DALTON, SECRETARY, DEPARTMENT OF THE NAVY, AGENCY.

Appeal No. 01941176
Agency No. DON 91-63165-009

Appellant filed an appeal with this Commission from a final decision of the agency 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The final agency decision (FAD) is dated November 23, 1993. The appeal was postmarked December 17, 1993. 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 cancelled appellant's complaint pursuant to 29 C.F.R. § 1614.107(h) for failure to accept an offer of full relief.

BACKGROUND

After obtaining EEO counseling, appellant, a Supervisor Computer Systems Analyst, filed a formal EEO complaint dated December 10, 1991, wherein she alleged that the agency discriminated against her based on her age (64) and reprisal for prior EEO activity. Specifically, appellant alleged that she learned on October 9, 1991, that her supervisor had attached a secret memo to her performance evaluation for the period ending June 30, 1991 that was derogatory, demeaning and slanderous. Appellant sought the following remedies for the alleged discrimination: (1) written reprimand and notation of reprimand in the supervisor's fitness report; (2) upgrade of appellant's last performance evaluation; (3) appropriate punishment to all involved in the discrimination; (4) all legal costs; and (5) damages as appropriate.

The agency accepted appellant's allegation of age discrimination regarding the performance appraisal memorandum. In response to appellant's April 30, 1992 request that reprisal be accepted as an additional basis for the alleged discrimination, the agency referred appellant for additional counseling. After additional counseling, appellant filed an EEO complaint, dated August 22, 1992, wherein she alleged that she had filed a prior complaint of sex discrimination that had been in court since 1973. Appellant alleged that at a departmental meeting during the summer of 1991, her supervisor had announced that the court case was finally settled. Appellant indicated that the case was still in litigation and that since that meeting her job had been "eroded" by her supervisor's lack of leadership and deliberate actions to subvert her efforts to manage her division. Appellant further alleged that the supervisor's performance evaluation input was an attempt to discredit appellant and to remove her from her job.1 Appellant indicated that she sought the same corrective action as described in her December 10, 1991 complaint.

By memorandum of September 9, 1992, the agency amended its acceptance of appellant's December 10, 1991 performance appraisal complaint to include a second issue: "alleged reprisal for prior complaint involving sex discrimination."Following the agency's investigation of appellant's complaint, appellant requested a hearing before an EEOC Administrative Judge (AJ). According to the agency's final decision, the AJ held a prehearing conference on October 18, 1993. On November 1, 1993, the agency sent appellant what it termed a "certification of offer of full relief."Therein, the agency offered the following relief: a. to remove the performance appraisal memorandum written by appellant's supervisor; b. to upgrade appellant's 1991 performance evaluation from Level 3, Fully successful to Level 4, Exceeds Fully Successful; and c. to ensure that appellant would not be subjected to any form of similar discrimination.

The agency's offer rejected the other remedies requested by appellant. The agency indicated that a written reprimand of appellant's supervisor and punishment of all individuals involved in the alleged discrimination were not part of make-whole relief for discrimination. The agency also indicated that appellant was not eligible for an attorney's fee award because she had been represented by an agency employee. The agency further indicated that it was not offering appellant damages for several reasons: (1) the record contained no evidence of intentional discrimination which might have entitled appellant to compensatory damages; (2) there was no evidence that appellant had been harmed by the alleged discrimination; (3) neither appellant's December 10, 1991, complaint, nor her April 30, 1992 letter, mentioned any medical expenses incurred as a result of, or directly related to, the alleged discrimination; and (4) compensatory damages are available only for conduct occurring on or after November 21, 1991.

The agency's offer discussed the record evidence regarding appellant's reprisal allegation but offered no specific remedies for the alleged discrimination. The offer was signed by the Commanding Officer, Naval Computer and Telecommunications Station Washington, Washington Navy Yard, Washington, D.C. In paragraph 7 of the offer, the Commanding Officer indicated that he had been designated by the agency's EEO Director "to certify in writing that the above offer constitutes an offer of full relief of your complaint and is the appropriate relief as provided for in 29 C.F.R. § 1614.501."He further advised appellant that if she refused to accept the agency's offer within 30 calendar days of receipt, the agency would cancel appellant's complaint. The agency amended its November 1, 1993 offer by memorandum of November 10, 1993. Therein, the agency indicated that appellant's request for damages was denied because there was no evidence in appellant's December 10, 1991 complaint, her amendment of April 30, 1992, or the investigative report that appellant had suffered any compensable harm as a result of the alleged discriminatory act(s). The agency further indicated that appellant's response to the amended offer had to be received within the 30-calendar-day time limit.

On November 23, 1993, the agency issued a final decision dismissing appellant's complaint pursuant to 29 C.F.R. § 1614.107(h) for failure to accept an offer of full relief. In the final agency decision the agency represented that during the prehearing conference of October 18, 1993 and a telephonic conference call that included both parties on November 4, 1993, the AJ had directed appellant to provide the agency with proof or certification to substantiate her claim for medical expenses. The agency indicated that as of November 15, 1993, appellant had not provided the documentation. The agency also indicated that during a second prehearing conference on November 15, 1993, appellant stated unequivocally that she was rejecting the agency's settlement offer and estimated that she had incurred $4,000 in medical expenses which she had not yet had time to document. The agency further indicated that while medical expenses could be recovered under the 1991 Civil Rights Act, the Act did not include complaints filed under the ADEA.

Appellant then filed the instant appeal. Appellant indicates that she still wants a hearing on her complaint because the affidavits that are in the record are biased and incomplete. The agency did not file a statement in response to appellant's appeal.

The record submitted to the Commission by the agency on appeal includes a copy of a letter from the AJ to the agency, dated December 6, 1993. Therein, the AJ indicated that he had received a copy of the agency's November 1, 1993 offer. The AJ indicated that after reviewing the offer, appellant's request for relief and the relevant case law and federal regulations on damage awards, he found that the offered relief provided appellant with that which she requested in her original complaint. Therefore, the AJ remanded the complaint for dismissal as requested by the agency.

ANALYSIS AND FINDINGS

The issue on appeal is whether the agency properly cancelled appellant's complaint pursuant to 29 C.F.R. § 1614.107(h) for failure to accept an offer of full relief. The pertinent regulation provides:

If, prior to the issuance of the notice required by § 1614.108(f), the complainant refuses within 30 days of receipt of an offer of settlement to accept an agency offer of full relief containing a certification from the agency's EEO Director, Chief Legal Officer or a designee reporting directly to the EEO Director or the Chief Legal Officer that the offer constitutes full relief, provided that the offer gave notice that failure to accept would result in dismissal of the complaint. An offer of full relief under this subsection is the appropriate relief in § 1614.501.

29 C.F.R. § 1614.107(h). The notice required by § 1614.108(f), referenced therein, is the notice to a complainant following completion of the agency's investigation that (s)he has the right to request a hearing before an AJ or to receive an immediate final decision on the complaint. We find that the agency's offer of full relief was defective for the reasons set forth below.

First, in the instant case, appellant requested a hearing after receiving the agency's § 1614.108(f) notice. Because the agency failed to issue its offer of full relief prior to the issuance of the notice required by § 1614.108(f), the agency's offer of full relief does not satisfy the requirements of 29 C.F.R. § 1614.107(h). See Joseph Poirrier v. Department of Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994).

Prior to a hearing, however, an AJ 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. If the agency then unilaterally and unconditionally promises, in writing, to provide the complainant with the full and complete remedy defined by the AJ, the AJ may then 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 EEOC's Office of Federal Operations. Id. None of the Poirrier conditions have been met in this case. Contrary to the Poirrier requirements, the agency rather than the AJ first determined what constituted full relief. In addition, the agency did not unilaterally and unconditionally promise to provide appellant with the relief. Moreover, as discussed further below, the relief set forth in the agency's November 1, 1993 offer, may not have constituted full relief. Finally, the agency dismissed appellant's complaint for failure to accept a full relief offer rather than for mootness.

An offer or promise of full relief must contain all appropriate relief, as set forth in 29 C.F.R. § 1614.501, for all of the alleged discrimination. The agency's offer of November 1, 1993 did not include any relief for the discrimination alleged in appellant's August 22, 1992 complaint. By memorandum of September 9, 1992, the agency amended its acceptance of appellant's December 10, 1991 performance appraisal complaint to include a second issue: "alleged reprisal for prior complaint involving sex discrimination."It is not clear from the appeal record, however, whether, in accepting reprisal as a second "issue" the agency intended to consolidate appellant's December 10, 1991 and August 22, 1992 complaints or merely to add reprisal as an additional basis for the discrimination alleged in appellant's December 10, 1991 complaint. If the former, full relief would also have to include full relief for the discrimination alleged in appellant's August 22, 1992 complaint.

Although appellant does not discuss the agency's offer in her appeal, the agency indicates in its final decision that appellant represented to the agency that she had incurred $4,000 in medical expenses which she had not yet had time to document. The final agency decision found that appellant was not eligible for such damages under the Civil Rights Act of 1991 because that Act did not include complaints filed under the ADEA. In so finding, the agency failed to consider that in her December 10, 1991 complaint, appellant alleged discrimination based on reprisal for her prior EEO activity, i.e., her complaint of sex discrimination that was still pending in court. Thus, appellant's reprisal claim involved an alleged violation of Title VII, not just an alleged violation of the ADEA.

Prior to the enactment of the Civil Rights Act of 1991, Title VII of the Civil Rights Act of 1964, as amended, did not authorize awards of compensatory damages, including medical expenses. See, e.g., Alfrettai Whiting v. ACTION, EEOC Request No. 05900093 (June 27, 1990). Section 102 of the Civil Rights Act of 1991, Pub.L. No. 102-166 (effective November 21, 1991), authorized awards of compensatory damages for alleged discrimination in violation of Title VII, that occurred on or subsequent to the effective date of the Act. Landgraf v. USI Film Products, 62 U.S.L.W. 4255 (U.S. April 26, 1994). Since the allegedly discriminatory action(s) described in appellant's December 10, 1991 complaint all occurred prior to November 21, 1991, the effective date of the Civil Rights Act of 1991, appellant would not be eligible for compensatory damages as part of make-whole relief for the alleged pre-Act discrimination. Therefore, the agency properly rejected appellant's claim for damages as part of full relief for the discrimination alleged in appellant's December 10, 1991 complaint. As discussed above, it is not clear from the record whether appellant was complaining about post-Act conduct in her August 22, 1992 complaint.

Because the agency's offer of full relief was not timely made and may not have offered full relief, we remand appellant's complaint to the agency to forward the complaint to the Commission for a hearing.

CONCLUSION

For all of the above reasons, we find that the agency's decision to dismiss appellant's complaint was improper. The final agency decision of November 23, 1993 is VACATED. The complaint is REMANDED to the agency for further processing in accordance with this decision, applicable regulations and the ORDER set forth below.

ORDER

The agency is ORDERED to process the remanded allegations in accordance with 29 C.F.R. § 1614.109. The agency shall requested that the Commission appoint an administrative judge to conduct a hearing on the remanded allegations within thirty (30) calendar days of the date this decision becomes final. In the remand request, the agency shall specifically indicate whether it is requesting a hearing only on appellant's December 10, 1991 allegation of discrimination based on age and reprisal or whether it is also requesting a hearing on appellant's August 22, 1992 reprisal allegations. The agency shall send a copy of the hearing request to appellant and her representative within the same time period. The agency shall also submit a copy of the hearing requests to the Compliance Officer 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 (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:

__________________
Frances M. Hart
Executive Officer
Executive Secretariat

___02/24/95___________
Date

1. According to the EEO Counselor's Report, the agency reassigned appellant, effective November 25, 1991, to work as a Deputy Director. In that capacity, appellant no longer was supervised by the supervisor whose actions were the subject of appellant's complaints.