05A01194
08-14-2002
Sandie Boydston, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Sandie Boydston v. Department of Agriculture
05A01194
August 14, 2002
.
Sandie Boydston,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A01194
Appeal No. 01973236
Agency No. 911101
DENIAL OF REQUEST FOR RECONSIDERATION
Sandie Boydston (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Sandie Boydston v. Department of Agriculture, EEOC
Appeal No. 01973236 (July 25, 2000). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates that: (1) the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or (2) the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b).
Complainant was employed as a GS-6 Technical Assistant at the agency's
Albuquerque, New Mexico, Soil Conservation Service facility. In 1991
she sought to have her position upgraded to GS-7. When her request was
denied she filed a formal complaint alleging discrimination on the bases
of national origin (Hispanic) and sex (female). Following the dismissal
of the complaint and an interlocutory appeal to this Commission,<1>
the case was remanded for a hearing. Before the hearing was held,
the parties entered into a settlement agreement.
The agreement provided for, inter alia, the agency to pay to complainant
�proven compensatory damages to the accepted issue of this complaint.�
Complainant submitted to the agency proof of damages, seeking an award
of $372,207.52 in past pecuniary losses, future pecuniary losses and
nonpecuniary losses. Included in the past pecuniary losses category,
was a claim for �legal expenses� in the amount of $16,387.18.
In a final agency decision dated February 11, 1997, the agency rejected
complaint's compensatory damages claim in its entirety on the ground
that complainant had failed to prove a causal relationship between the
discriminatory conduct and the damages claimed. The agency also relied
on the alternative ground that compensatory damages could not be awarded
because the discriminatory conduct upon which the damages claim was
premised occurred prior to the effective date of the Civil Rights Act
of 1991.
Complainant appealed the February 11, 1997 to this Commission.
The previous decision affirmed the denial of compensatory damages,
accepting the agency's argument that the Civil Rights Act of 1991 does not
apply retroactively to actions which occurred before its effective date.
It cited Commission precedent applying the Supreme Court's decision
on the point, Landgraf v. USI Film Products, 511 U.S. 244 (1994).
However, the previous decision noted that the agency's argument did
not apply to any claim for attorney's fees complainant might assert
because complainant's entitlement to an award of attorney's fees did
not derive from that statute. Accordingly, we remanded the matter to
the agency with instructions to �determine whether, as a consequence of
the settlement, complainant is a prevailing party in this matter and,
if she is determined so to be, the amount of attorney's fees to be
awarded.� Complainant now requests that we reconsider that decision.
Promissory Estoppel
In her request for reconsideration complainant argues that regardless
of the applicability of the Civil Rights Act of 1991 the agency must be
held liable for compensatory damages under the doctrine of promissory
estoppel because, by agreeing to the dismissal of her complaint,
complainant relied to her detriment on the agency's undertaking in the
settlement to pay her compensatory damages. Although there is some
force to complainant's argument, the law is not on her side. First,
in order to invoke the doctrine of promissory estoppel, complainant
must demonstrate that her reliance on the agency representations was
objectively reasonable. Restatement (Second) of Contracts �90. We do
not think it was reasonable for complainant to rely on the agency's
promise in 1995 to pay compensatory damages in light of the Supreme
Court's decision the previous year in Landgraf that the Civil Rights
Act of 1991 would not be given retroactive effect. That decision made
clear that compensatory damages were not awardable for the actions about
which complainant had complained. It was not reasonable for complainant
to accept as true the agency's implied representation to the contrary.
Second, although the Commission has applied the doctrine of promissory
estoppel to require an agency's compliance with a settlement agreement,
in Jacobsohn v. Department of Health and Human Service, EEOC Request
No. 05930689 (June 2, 1994), the Commission declined to require an
agency to pay $50,000 in �liquidated damages� as it had promised to do
in a settlement agreement. The Commission did so because damages of
that nature were not awardable under the applicable statute. That is
precisely the situation in the instant case.
Attorney's Fee
Complainant requests that we reconsider the previous decision's conclusion
that the record is inadequate to determine whether by virtue of having
obtained a settlement of her claims, complainant is a prevailing party
and thus entitled to attorney's fees. We decline to do so. The issue
of prevailing party status was raised, sua sponte, by the Commission in
the previous decision. The agency has not had adequate opportunity to
address it. It will be afforded that opportunity on remand.
For the foregoing reasons, after a review of complainant's request
for reconsideration, the previous decision, and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission
to deny the request. The decision in EEOC Appeal No. 01973236
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER
Complainant's attorney is ORDERED to submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency is ORDERED to issue a final decision
within thirty (30) calendar days of its receipt of that statement.
The decision shall determine whether, as a consequence of the settlement,
complainant is a prevailing party in this matter and, if she is determined
so to be, the amount of attorney's fees to be awarded. The decision shall
clearly set forth the calculations, amounts disputed, reasons for any
amounts denied, and all other relevant information regarding the amount
of attorney's fees awarded. The decision shall provide complainant with
notice of her right to appeal the decision to the Commission. The agency
shall ensure that the record of this matter includes a full copy of the
subject settlement agreement at issue herein. A copy of the agency's
final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2002
__________________
Date
1 Boydston v. Department of Agriculture,
EEOC Appeal No. 01933817 (January 25, 1994) req. for reconsid. denied
Request No. 05940416 (December 22, 1994).