Lori Ann Salazar, Appellant,
V.
Janet Reno, Secretary, Department of Justice, (Federal Bureau of Investigation), Agency.

Request No. 
05930316
Appeal No. 01924319
Agency No. F-90-4224-D

February 09, 1994

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On December 22, 1992, the Department of Justice (hereinafter referred to as the agency) timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Lori Ann Salazar v. William P. Barr, Attorney General, Department of Justice, (Federal Bureau of Investigation), EEOC Appeal No. 01924319 (November 19, 1992) (received on November 23, 1992). EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous decision pursuant to 29 C.F.R. §1614.407(a). In addition, the Commissioners may also reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish one or more of the following three criteria prescribed by 29 C.F.R. §1614.407(c): (1) new and material evidence is available which was not readily available when the previous decision was issued; (2) the previous decision involves an erroneous interpretation of law, regulation, or material fact, or a misapplication of established policy; or (3) the previous decision is of such exceptional nature as to have substantial precedential implications. [FN1] The agency bases its request for reconsideration on 29 C.F.R. §1614.407(c)(2). For the reasons set forth herein, the Commission exercises its discretion to reconsider the previous decision.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly vacated the agency's final decision and remanded appellant's complaint to the agency on the grounds that appellant's sexual harassment claim was not rendered moot by her subsequent resignation from the agency.

BACKGROUND

A review of the record reveals that appellant filed a formal EEO complaint dated October 30, 1990, alleging discrimination on the basis of sex (female), when she was sexually harassed by a co-worker. In her formal complaint, appellant requested the following as corrective relief: (1) to work in a non-intimidating work environment; (2) a right to sue letter in a court of law; and (3) punitive and compensatory damages. Thereafter, on January 11, 1991, appellant resigned from the agency.

In a final agency decision dated August 17, 1992, the agency rejected appellant's complaint for failure to state a claim. Specifically, the agency asserted that appellant's harassment allegation was moot due to her resignation, and that other issues or items of relief in her complaint were not available under the applicable statutes.

Appellant appealed the agency's decision to the Commission, stating, interalia, that she was forced to resign due to the harassment. In response to appellant's appeal, the agency stated, interalia, that although the Civil Rights Act of 1991 does provide for the recovery of compensatory damages, such damages are not available in this case as the alleged harassment took place prior to the November 21, 1991 effective date of the statute. [FN2] In addition, the agency correctly stated that a right to sue letter was not necessary in the administrative process. The agency concluded that in light of appellant's resignation, there was no other relief available and, therefore, appellant failed to state a claim.

The previous decision considered the agency's contention that because of appellant's subsequent resignation her complaint no longer presented a live controversy. However, based on a review of the record, the previous decision found that appellant's case did not satisfy both conditions set forth in County of Los Angeles v. Davis, 440 U.S. 625 (1979), due to appellant's assertion on appeal that her resignation had been a constructive discharge. The previous decision concluded that in light of appellant's constructive discharge allegation raised in her appeal, interim relief or events had not completely eradicated the effects of the alleged violation, and appellant's complaint was not moot. Davis, 440 U.S. at 631. [FN3]

In its request for reconsideration, the agency disputes the finding of the previous decision that because appellant has now asserted that she was constructively discharged, the fact of her resignation no longer renders her sexual harassment complaint moot.

ANALYSIS AND FINDINGS

As noted above, the Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish that any one or more of the three criteria of 29 C.F.R. §1614.407(c), referenced above, is met. After a careful review of the record, the Commission concludes that although the previous decision properly remanded appellant's complaint for further processing, the grounds upon which this matter is being remanded must be clarified. Therefore, the Commission grants reconsideration on its own motion in order to revise the analysis in the previous decision. 29 C.F.R. §1614.407(c).

The matter presently at issue is whether the allegation of sexual harassment raised by appellant in her formal complaint was rendered moot, i.e., no longer states a claim or presents a live controversy, due to appellant's subsequent resignation. In County of Los Angeles v. Davis, supra, the Supreme Court set forth a test for determining when a case no longer presents a live controversy. The Court stated that the following two conditions must be present to render an allegation moot; (1) it can be said with assurance that there is no reasonable expectation that the violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Id. at 631.Under such circumstances, no relief is available and there is no need for a determination of the rights of the parties. For the two reasons set forth below, the Commission concludes that appellant's complaint is not moot, and was properly remanded for further processing in the previous decision.

First, the Commission agrees with the previous decision that appellant's complaint is not moot in light of appellant's allegation that her resignation, which occurred subsequent to the filing of the instant complaint, was forced and amounted to a constructive discharge. The record shows that pursuant to our previous decision, the agency, by letter of December 16, 1992, referred appellant to EEO counseling on her constructive discharge allegation. On appeal, the agency had stated that when and if appellant files a formal complaint, the agency would at that point assess the timeliness of the constructive discharge allegation. The previous decision advised the agency that the date of appellant's appeal raising this allegation for the first time should be deemed the date of appellant's EEO contact. In this regard, the agency and the previous decision found that there was no evidence in the record to suggest that appellant ever contacted an EEO Counselor or filed a complaint indicating that her resignation was discriminatory prior to her filing of the appeal in this matter. However, upon further review of the record, the Commission finds that by letter dated October 20, 1992, submitted in response to the agency's comments on appeal, appellant stated that she did raise this allegation with the agency. Specifically, appellant asserted that on January 16, 1991, she contacted the EEO Counselor handling her case, and informed the Counselor that she had just resigned from the agency due to the harassment. Appellant stated that she specifically asked the Counselor if her case would be dropped due to her resignation, but that the Counselor said no. Appellant also stated that she spoke to the Counselor several times on this matter and was never informed that she needed to take any additional steps or initiate a separate action in order to raise the issue of constructive discharge. The agency is advised to note appellant's contentions in this regard when assessing the timeliness of her constructive discharge allegation. In addition, the agency is strongly advised, if possible, to consolidate for processing and investigation appellant's harassment allegation at issue herein with appellant's constructive discharge allegation, in light of the interrelatedness of these two matters. [FN4]

Second, and in order to clarify the previous decision, the Commission must also address whether there is any relief available to appellant on her harassment claim, independent of her subsequent constructive discharge allegation. The agency maintains that due to appellant's resignation on January 11, 1991, there is no further relief available to appellant on her sexual harassment claim. However, for the reasons set forth below, the Commission finds that appellant's complaint is not moot, as interim events have not completely eradicated the effects of the alleged discrimination. Specifically, the Commission finds that appellant's request for compensatory damages, raised in her formal complaint, must be addressed before a final determination may be made on the mootness of her complaint. In this regard, the Commission has held that the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, (hereinafter the Act) makes compensatory damages available to federal sector complainants in the administrative process. See Richard Jackson v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, (Southern Region), EEOC Appeal No. 01923399 (November 12, 1992), Request for Reconsideration Denied in EEOC Request No. 05930306 (February 1, 1993). The agency argues that compensatory damages are not available under the Civil Rights Act of 1991 for pre-Act conduct, citing EEOC Policy Guidance on Application of Damages Provisions of the Civil Rights Act of 1991 to Pending Charges and Pre-Act Conduct (December 27, 1991). However, in light of the subsequent rescission of the above cited Policy Guidance, the Commission concludes that the sexual harassment allegation at issue, initially raised in appellant's formal complaint, may not be found moot given the potential availability of compensatory damages under the Act. See, Rescission of Policy Guidance on Application of Damages Provisions of the Civil Rights Act of 1991 to Pending Charges and Pre-Act Conduct (April 19, 1993). Accordingly, the Commission finds that the agency's rejection of appellant's harassment allegation as moot was improper, in addition to the reason cited above, because the agency did not specifically address appellant's claim for compensatory damages.

In light of the above, the Commission advises the parties that a claim for compensatory damages must be supported by objective evidence. Where the complainant shows objective evidence that he or she has incurred compensatory damages, and that such damages are related to the alleged unlawful discrimination, the agency must address the issue of compensatory damages in its final decision. Because the appellant in this case made a timely claim for damages related to the alleged discriminatory conduct by the agency, but failed to offer objective evidence in support of the damages request, the agency should have requested from the appellant some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue, prior to making its decision on the mootness of appellant's complaint. See Jackson, supra.

On October 6, 1993, the Commission declared, as follows:

The United States Supreme Court has granted certiorari in cases raising the issue of the applicability of the Civil Rights Act of 1991 to matters pending as of its effective date, November 21, 1991. The Government's position in the cases pending before the Supreme Court is that the Act is retroactive. Until the Supreme Court decides this issue of retroactivity, the Equal Employment Opportunity Commission will apply the provisions of the Civil Rights Act of 1991, which are at issue before the Court in Landgraf v. USI Film Products, to all open cases that on November 21, 1991, were pending at the hearing stage.[FN5] Where discrimination is found in a matter which was pending on November 21, 1991, and compensatory damages are awarded, the Commission will stay enforcement of that portion of the order granting compensatory damages until such time as the Supreme Court renders a decision in the above-referenced cases.

EEOC Regulations provide for reconsideration when the party requesting reconsideration submits written argument or evidence which tends to establish that the regulatory criteria of 29 C.F.R. §1614.407(c) have been met. Based on a thorough review of the record, the Commission finds that appellant's complaint is properly remanded to the agency for further processing for the reasons set forth above. The agency's final decision is hereby vacated, and this matter is remanded to the agency for further processing consistent with this decision and the Order below.

CONCLUSION

After a review of the agency's request for reconsideration, the previous decision, and the entire record, the Commission hereby grants reopening on its own motion, pursuant to 29 C.F.R. §1614.407(a). The decision of the Commission in EEOC Appeal No. 01924319 (November 19, 1992) is hereby AFFIRMED, but for different reasons, the agency's final decision is VACATED, and this matter is REMANDED to the agency for further processing, as set forth in the ORDER below. This is the final decision of the Commission on the matters raised herein. There is no further right of administrative appeal from the decision of the Commission on this request for reconsideration.

ORDER

The agency is ORDERED to process the remanded allegation in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegation within thirty (30) calendar days of the date this decision becomes final. In addition, the agency is advised, if possible, to consolidate the remanded allegation for processing with appellant's constructive discharge allegation. 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 acknowledgement 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. In addition, the agency shall advise the Compliance Officer, in writing, if it is unable to consolidate the matters addressed herein, and shall provide its reasons for failure to consolidate.

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.

STATEMENT OF APPELLANT'S RIGHTS 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.

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.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. 29 C.F.R. Part 1614 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.

[FN2]. The Commission advises appellant that the agency correctly asserted on appeal that punitive damages are not available in an administrative complaint against the federal government.

[FN3]. The Commission notes that the previous decision did not address the second condition set forth in County of Los Angeles, which requires that there be no reasonable expectation that the harassment at issue will recur.

[FN4]. In this regard, the Commission notes that appellant's assertions on appeal indicate that she assumed the two matters would be handled together when she brought her constructive discharge allegation to the attention of the EEO Counselor shortly after her resignation.

[FN5]. The provisions will also be applied to all cases at the agency and appellate stages. SeeKim M. Neal v. United States Postal Service, EEOC Appeal No. 01924024 (November 12, 1993).