Edward R. Falks, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency. Request No. 05960250 Appeal No. 01932797 Agency No. TD-92-2130 September 05, 1996 DECISION ON RECONSIDERATION INTRODUCTION The Department of the Treasury (agency) submitted a petition for clarification of the Commission's order for relief in Falks v. Department of the Treasury, EEOC Appeal No. 01932797 (October 1, 1993). However, because the decision in Appeal No. 01932797 is of such exceptional nature as to have substantial precedential implications, we are exercising our discretion and reconsidering this decision pursuant to 29 C.F.R. §. 1614.407(a).1 ISSUE PRESENTED Whether compensatory damages are available in claims of reprisal for complaints filed under the Age Discrimination in Employment Act of 1967 (ADEA). BACKGROUND Appellant alleged that the agency retaliated against him for previous EEO activity by giving him a lower performance evaluation than he expected on December 17, 1991, and by requiring him to submit his work to supervisory review, beginning on January 21, 1992, in order to avoid being placed on a performance improvement plan. The agency investigated the complaint and issued a proposed disposition in which it found no discrimination. Appellant objected to the agency's findings and requested a hearing, pursuant to which an administrative judge recommended that the case be dismissed as moot. The agency subsequently adopted the administrative judge's recommendation and appellant appealed, contending that he was entitled to seek compensatory damages for allegations of reprisal. The decision in EEOC Appeal No. 01932797 found that the agency improperly dismissed appellant's complaint on grounds of mootness. It noted that in addition to the specific claims set forth in the complaint, appellant alleged that he had suffered other retaliatory and discriminatory actions and, as a result, had to seek medical treatment. The previous decision stated that appellant's entitlement to compensatory damages could not properly be addressed until he was given a full opportunity to present evidence in support of his claims on liability as well as relief. The Commission ordered the agency to process the remanded allegations in accordance with 29 C.F.R. § 1614.108, and advised the agency to provide appellant with counseling to the extent that he has identified additional claims of discrimination not encompassed by the complaint at issue. The agency seeks a determination as to whether appellant is entitled to compensatory damages for reprisal when he filed a previous EEO complaint under the ADEA. The agency stated that in EEOC Appeal No. 01932797, the decision remanded the matter after concluding that the case was not moot because appellant intended to present evidence at the time of the hearing regarding a claim for compensatory damages in connection with the complaint. The agency further stated that because appellant had a new complaint in process, the instant case was held in abeyance pending disposition of the new case, based on appellant's intention to present evidence regarding his claim for compensatory damages at the time of the hearing. The agency reported that the two cases were consolidated and returned for a hearing on July 6, 1994. Finally, the agency stated that the instant case was again remanded by the administrative judge for appropriate action, and that in the remand letter, the administrative judge stated that appropriate action may include seeking clarification from the Commission on the question of whether compensatory damages are available in claims of reprisal for complaints filed under the ADEA. ANALYSIS AND FINDINGS The issue that the agency seeks to have clarified is whether it is obligated to investigate the issue of compensatory damages, pursuant to the Commission's order in EEOC Appeal No. 01932797, where the reprisal complaint at issue was based on an underlying ADEA complaint. Although styled as a petition for clarification, the agency's submission questions the outcome of the Commission's earlier appeal decision, and is therefore more in the nature of an untimely request to reconsider. Because of the substantial precedential implications of the issue raised, however, the Commission has re-docketed this matter in order to reconsider our prior decision in Appeal No. 01932797 on our own motion pursuant to 29 C.F.R. § 1614.407(a). The United States, as sovereign, is immune from suit unless it expressly consents to be sued, and waivers of sovereign immunity must be clearly and unequivocally expressed in the statute. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Mitchell, 445 U.S. 535, 538 (1980). Thus, remedies cannot be awarded in an action against an agency of the federal government without an express waiver of sovereign immunity from an award of those remedies. Library of Congress v. Shaw, 478 U.S. 310, 311 (1986). To determine whether one who files a reprisal complaint based solely on prior EEO activity may claim compensatory damages, we must look to the language of the federal sector provisions of the ADEA, as well as the provisions of the Civil Rights Act of 1991 which authorize compensatory damages awards in cases of employment discrimination. The provisions of the ADEA that govern federal sector processing of age discrimination complaints are found in 29 U.S.C. § 633a. Section 633a contains an exclusivity provision which is not found in its counterpart provision of Title VII. 29 U.S.C. § 633a(f). This provision states that any personnel action by a federal agency is not subject to any other provisions of the ADEA. The Supreme Court has interpreted section 633a(f) to mean that section 633a is self-contained in that no other provision of the ADEA applies to administrative complaints of age discrimination. Lehman v. Nakshian, 453 U.S. 156, 168 (1981). One consequence of 633a(f) is that it precludes certain remedies and procedures under the federal sector provisions of the ADEA that are available under the private sector provisions of the ADEA, as well as Title VII. For example, in Lehman, plaintiff filed suit under the ADEA and requested a jury trial. The Court held that, although § 626(c) established the right of a jury trial for private-sector parties, that right was unavailable to federal employees by virtue of section 633a(f). 453 U.S. at 162-65. Regarding the availability of attorney's fees, both the Commission and the courts have held that Congress did not explicitly waive sovereign immunity by providing for the payment of attorney's fees to successful ADEA claimants in the administrative process when it enacted section 633a of the ADEA. Palmer v. General Services Administration, 787 F.2d 300 (8th Cir. 1986); Kennedy v. Whitehurst, 690 F.2d 951 (D.C. Cir. 1982); Seymour & King v. Department of Veterans Affairs, EEOC Request No. 05900257 (July 20, 1990). Similarly, although a private sector ADEA complainant may pursue a claim for liquidated damages under section 626(b) if the statutory violation was willful, this remedy is not available under the federal sector provision of the ADEA. Jacobsohn v. Department of Health and Human Services - Social Security Administration, EEOC Request No. 05930689 (June 2, 1994). Claims for compensatory damages in employment discrimination cases are governed by section 102 of the Civil Rights Act of 1991. 42 U.S.C. § 1981a. Section 1981a explicitly authorizes claims for compensatory damages to be brought under Title VII, the Rehabilitation Act and the Americans with Disabilities Act, but is silent with respect to availability of compensatory damages for violations of the ADEA. 42 U.S.C. § 1981a(a). The Commission has interpreted this statutory silence to mean that Congress did not intend to waive sovereign immunity with respect to claims for compensatory damages brought under the ADEA. The Commission has therefore determined that compensatory damages are not available in complaints brought under the ADEA. Taylor v. Department of the Army, EEOC Request No. 05930633 (January 14, 1994); Patterson v. Department of Agriculture, EEOC Request No. 05940079 (October 21, 1994). Appellant in this case is claiming compensatory damages not for age discrimination, but for reprisal arising from the previous filing of a discrimination complaint under the ADEA. In an analogous situation, the Commission has held that agencies are not obligated to award attorney's fees incurred during the administrative processing of reprisal complaints in which the prior EEO activity arose under the ADEA. Steinbach v. Department of the Army, EEOC Request No. 05931045 (July 21, 1994); Thompson v. Department of Health and Human Services, EEOC Request No. 05910892 (March 11, 1992); Terracina v. Department of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992). As with attorney's fees, there has been no explicit waiver of sovereign immunity, either in the ADEA itself or in Section 102 of the Civil Rights Act of 1991, that makes provision for an award of compensatory damages for an allegation of reprisal based solely on a prior ADEA complaint. In the absence of such an express waiver of sovereign immunity, the Commission finds that compensatory damages are not available for reprisal complaints arising solely out of prior EEO activity related to the ADEA. In view of the Commission's finding that compensatory damages are not available to appellant, the agency's dismissal for mootness is not affected by appellant's claim for compensatory damages, and is therefore affirmed. CONCLUSION Based upon a review of the record and the submissions of the parties, and for the foregoing reasons, the Commission reopens its decision in EEOC Appeal No. 01932797. The Commission finds that the agency properly dismissed appellant's complaint on grounds of mootness. It is therefore the decision of the Commission to reinstate the agency's final decision in Case No. TD 92-2130. There is no further right of administrative appeal from this decision. STATEMENT OF RIGHTS - ON RECONSIDERATION RIGHT TO FILE A CIVIL ACTION (P0993) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil 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, 29 C.F.R. Part 1614.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. 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. 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 Footnotes 1 The Commission originally docketed this matter as EEOC Petition No. 04950011, which has been administratively closed.