Fitzgerald v. Sec US Dept of Vets ( 1997 )

United States Court of Appeals,
Fifth Circuit.
No. 96-30731.
Michael FITZGERALD, Plaintiff-Appellant,
v.
SECRETARY, UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
Sept. 5, 1997.
Appeal from the United States District Court for the Western
District of Louisiana.
Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.
DUHÉ, Circuit Judge:
Michael Fitzgerald appeals the district court's dismissal of
his Title VII suit for failure to exhaust administrative remedies.
We affirm.
I
Plaintiff-Appellant Michael Fitzgerald, a black male, was
employed as a pharmacy technician at a Department of Veterans
Affairs (the "VA") medical center in Shreveport, Louisiana. In the
spring of 1992, Fitzgerald was allegedly harassed at work by a
white female pharmacist. Fitzgerald maintains that the pharmacist
uttered racial slurs about him; ordered him to perform job-related
tasks that had already been completed; and falsely accused him of
putting his hands around her throat, threatening to kill her, and
shooting another co-worker's house with a firearm.
Fitzgerald filed a formal complaint of discrimination with the
director of the VA medical center in Shreveport. After conducting
1
an investigation into Fitzgerald's claims, the VA, in December
1992, sent Fitzgerald a "certified offer of full relief" pursuant
to 29 C.F.R. §§ 1614.107(h), 1614.501. In the offer of full
relief, the VA promised to: (1) provide Fitzgerald with "a fair
and equitable work environment free from harassment or any other
discrimination"; (2) ensure that Fitzgerald would not have to work
on the same shift as his harasser; and (3) formally discipline
Fitzgerald's harasser. Notably, the offer of full relief did not
contain any offer of compensatory damages.
Fitzgerald did not accept the agency's offer of relief, and
pursuant to 29 C.F.R. § 1614.107(h), the VA subsequently dismissed
his complaint. After the Equal Employment Opportunity Commission's
("EEOC") Office of Federal Operations affirmed the VA's dismissal,
Fitzgerald filed suit.
The magistrate judge analyzed the VA's settlement offer and
concluded that it was, in fact, an offer of full relief because:
(1) Fitzgerald received injunctive relief that effectively
eliminated the harassment, and (2) compensatory damages were not
available to federal employees under Title VII. The magistrate
judge thus recommended that Fitzgerald's complaint be dismissed
because the rejection of an offer of full relief constitutes a
failure to exhaust administrative remedies, which is a necessary
prerequisite to filing a civil suit. See Francis v. Brown, 58 F.3d
191, 192-93 (5th Cir.1995); Wrenn v. Secretary, Dep't of Veterans
Affairs, 918 F.2d 1073, 1078 (2d Cir.1990). The district court
agreed, and dismissed the suit. In an unpublished opinion,
2
however, we reversed the judgment of the district court because
compensatory damages are generally available to Title VII claimants
for conduct occurring after the effective date of the Civil Rights
Act of 1991, as is the case here. See Fitzgerald v. Brown, 58 F.3d
636 (5th Cir.1995) (table) (citing Landgraf v. USI Film Prods., 511
U.S. 244, 247-49, 114 S. Ct. 1483, 1488, 128 L. Ed. 2d 229 (1994)).
On remand, the district court again dismissed the suit. The
court reasoned that even though compensatory damages may be
available to Title VII claimants during the administrative process,
Fitzgerald never asked for such damages during the administrative
stage of his case. Because it found that Fitzgerald never
petitioned the VA or the EEOC for compensatory damages, the court
again concluded that the VA's offer fully responded to Fitzgerald's
claims and was thus an offer of full relief. It therefore held
that Fitzgerald's rejection of an offer of full relief constituted
failure to exhaust his administrative remedies. See Francis, 58
F.3d at 193; Wrenn, 918 F.2d at 1078. Fitzgerald appeals.
II
A
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq., prohibits discrimination on the basis of
race, color, religion, sex, or national origin in federal and
private employment. Title VII grants an aggrieved federal employee
the right to file suit in federal district court, see 42 U.S.C. §
2000e-16(c), but before bringing suit, an employee must exhaust his
administrative remedies against his federal employer. See Francis,
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58 F.3d at 192; Brown v. General Servs. Admin., 425 U.S. 820, 832-
33, 96 S. Ct. 1961, 1967-68, 48 L. Ed. 2d 402 (1976). If a federal
employee fails to exhaust his administrative remedies, the district
court cannot adjudicate the employee's Title VII claim. See Porter
v. Adams, 639 F.2d 273, 276 (5th Cir.1981) (noting that exhaustion
is "an absolute prerequisite" to suit under § 2000e-16); Edwards
v. Department of the Army, 708 F.2d 1344, 1346 (8th Cir.1983).
Under the purview of Title VII, the EEOC has promulgated
regulations designed to resolve claims of discrimination at the
administrative level; these regulations set forth procedures by
which federal employees must pursue charges of discrimination.
Federal employees claiming illegal discrimination need first
consult with an EEO counselor within the employing agency. See 29
C.F.R. § 1614.105(a). If the EEO counselor is unable to resolve
the matter informally, the counselor notifies the employee of his
right to file a formal administrative complaint with the employing
agency. See id. § 1614.105(d). After investigating the complaint,
the employing agency may attempt to settle the matter by making an
offer of "full relief" to the complainant. See id. §§ 1614.107(h),
1614.501. Full relief may include, "but need not be limited to,"
nondiscriminatory placement with back pay and interest, the
elimination of any discriminatory practices, cancellation of
unwarranted personnel action, and full opportunity to participate
in the employee benefit previously denied. See id. § 1614.501(a),
(c).
If the complaining employee refuses to accept an offer that
4
has been certified as an offer of "full relief" by the EEOC, the
employing agency must dismiss the employee's complaint. See id. §
1614.107(h). The employee may then seek EEOC review of the
dismissal, see id. § 1614.401, and may also bring suit in federal
district court. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§
1614.408. If, upon de novo review, the district court also
concludes that the agency's offer constitutes full relief, then the
court must dismiss the complaint for failure to exhaust
administrative remedies. See Francis, 58 F.3d at 193 & n. 1
("Therefore, we hold that a federal employee fails to exhaust his
administrative remedies when he rejects a settlement offer for full
relief on the specific claims he asserts.").
B
On appeal, Fitzgerald contends that the VA's settlement
proposal was not an offer of full relief because it did not offer
him compensatory damages for emotional injuries that allegedly led
to his hospitalization. Although Fitzgerald recognizes that he
never specifically asked the VA or the EEOC for compensatory
damages, he argues that Title VII claimants can obtain compensatory
damages for emotional injuries only in actions brought in federal
district court, not in administrative proceedings. He therefore
maintains that he cannot be faulted for failing to ask the VA for
compensatory damages because it is beyond the power of the VA to
offer such. Cf. Marsh v. Jones, 53 F.3d 707, 710 (5th Cir.1995)
(holding that state prisoner seeking only monetary damages in §
1983 suit need not exhaust administrative remedies pursuant to §
5
1997e if such remedies do not provide for the award of monetary
relief). Fitzgerald also contends that it would be fundamentally
unfair to require employees, who are often unassisted by counsel
during the administrative process, to bear the burden of
specifically pleading for damages. We find neither contention
persuasive.
1
Although no federal circuit court has addressed the issue, we
hold that administrative agencies may offer compensatory damages
for emotional injury to federal employees pursuing a Title VII
claim. A textual analysis of Title VII supports our view. Title
42 U.S.C. § 1981a(a)(2) provides that a party may recover
compensatory damages against an employer in an "action" brought
pursuant to 42 U.S.C. §§ 2000e-5 or 2000e-16. See 42 U.S.C. §
1981a(a)(2). Nowhere does Title VII define whether the term
"action" refers to a district court suit, an administrative
proceeding, or both. Regardless, the text of Title VII's remedial
provisions demonstrates that compensatory damages are available in
administrative proceedings. First, § 2000e-16(a) is a broad
anti-discrimination provision prohibiting discrimination in federal
employment. See id. § 2000e-16(a). Section 2000e-16(b) grants the
EEOC wide-ranging authority to enforce the anti-discrimination
provisions of subsection (a) through "appropriate remedies,
including reinstatement or hiring of employees with or without back
pay." See id. § 2000e-16(b). That subsection also directs the
EEOC to "effectuate the policies of this section, and ... issue
6
such rules, regulations, orders and instructions as it deems
necessary and appropriate to carry out its responsibilities under
this section." Id. We think that this mandate, as described in §
2000e-16(b), is sufficiently broad to allow the EEOC to offer—or to
certify or approve an administrative agency's offer of full relief
that includes compensatory damages for emotional injuries. In
addition to specifically authorizing back pay, which is a form of
compensatory damages, the statute charges the EEOC to adopt
measures that it deems "necessary and appropriate." When a federal
employee suffers harm that may be remedied by compensatory damages,
it is certainly necessary and appropriate for the EEOC to grant
such relief. Given that the purpose of Title VII is to make
injured claimants whole, see Albemarle Paper Co. v. Moody, 422 U.S.
405, 419, 95 S. Ct. 2362, 2372, 45 L. Ed. 2d 280 (1975), we do not
believe that Congress would have created an administrative process
capable of providing only partial relief.
Moreover, to hold that compensatory damages are available
only in civil actions brought in federal district court would be
antithetical to the exhaustion requirement. Congress created the
EEOC and established administrative procedures so that aggrieved
employees could "settle disputes through conference, conciliation,
and persuasion" before they are permitted to file lawsuits. See
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011,
1017, 39 L. Ed. 2d 147 (1974). If complainants could receive
compensatory damages only in district court, they would be
encouraged either to "intentionally bypass the administrative
7
process and go straight to district court or perfunctorily go
through the administrative process and then seek judicial review to
obtain full relief." McAdams v. Reno, 858 F. Supp. 945, 951
(D.Minn.1994) (finding that compensatory damages are available in
administrative proceedings), aff'd on other grounds, 64 F.3d 1137
(8th Cir.1995).
Our holding is also consistent with the practice of the EEOC,
which specifically held that compensatory damages are available in
administrative proceedings. See Jackson v. United States Postal
Service, EEOC Appeal No. 01923399 (Nov. 12, 1992). We afford
considerable weight and deference to an agency's interpretation of
a statute it administers if Congress has not spoken directly to the
precise question at issue. See Iredia v. Immigration and
Naturalization Serv., 981 F.2d 847, 848 (5th Cir.1993) (citing
Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844-45, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694
(1984)). Moreover, citing Jackson, the EEOC has repeatedly stated
that an administrative agency may offer compensatory damages to
Title VII claimants. See, e.g., Johnson v. Department of the
Treasury, EEOC Appeal No. 01966242, 1997 WL 377519 (Jul. 1, 1997);
Price v. United States Postal Serv., EEOC Appeal No. 01945860, 1996
WL 600763 (Oct. 11, 1996); Reesey v. Department of the Army, EEOC
Appeal No. 01953812, 1995 WL 702369 (Nov. 9, 1995); Coger v.
Department of Veterans Affairs, EEOC Appeal No. 01941390, 1995 WL
80077 (Feb. 21, 1995); Sussman v. Department of Health and Human
Servs., EEOC Appeal No. 01941579, 1994 WL 733870 (Jul. 29, 1994);
8
Haynes v. United States Postal Serv., EEOC Appeal No. 01922811,
1993 WL 762904 (Dec. 14, 1993).
2
Having held that compensatory damages are available in
administrative proceedings, we turn to the question whether the
VA's settlement offer constituted full relief. We review this
question de novo. See Francis, 58 F.3d at 193 n. 1.
In Francis v. Brown, we held that a "federal employee fails
to exhaust his administrative remedies when he rejects a settlement
offer for full relief on the specific claims he asserts." 58 F.3d
at 193 (emphasis added). Implicit in our holding is the
proposition that a settlement offer is one of full relief if it
adequately resolves the particular claims that an aggrieved
employee asserts. The employee bears the initial burden of
notifying his employing agency of the specific relief sought, and
here again, we emphasize that a complainant may only receive relief
for that which he asks. Indeed, it would be contrary to the
purpose of the exhaustion requirement to allow a claimant to pursue
a claim in district court that he failed to raise during the
administrative investigation. The exhaustion doctrine requires a
good faith effort by the aggrieved employee to provide all relevant
and available information to the investigating agency. See Munoz
v. Aldridge, 894 F.2d 1489, 1492-93 (5th Cir.1990). Administrative
agencies should not be forced to guess at the relief sought.
We note that the employee need not present his claim for
compensatory damages in a legal or technical manner. He must,
9
however, inform the employing agency or the EEOC of the particular
facts of the case that demonstrate that he has suffered an
emotional and/or mental injury that requires the payment of
compensatory damages to make him whole. Such facts obviously must
demonstrate more than the mere fact of forbidden discrimination or
harassment. We do not seek to place an undue burden on Title VII
claimants, who often proceed pro se during the administrative
investigation. Even a pro se claimant, however, should recognize
the importance of informing the employing agency or the EEOC of the
pertinent facts of his complaint and injury. Once the agency is
put on notice of facts that may justify an award of compensatory
damages, the burden shifts to the employing agency to investigate
the claim for compensatory damages. For example, if the claimant
notifies the agency that he was hospitalized as a result of illegal
harassment, then an offer of full relief must either offer to
reimburse the employee for the damages sustained or otherwise
explain why damages are not being offered.
In the instant case, Fitzgerald had numerous opportunities to
inform the VA or the EEOC of any damages that he had sustained, but
he repeatedly failed to do so. His first opportunity arose when he
filed his formal complaint of discrimination with the VA. In this
handwritten form, Fitzgerald briefly described the acts of
discrimination that he had faced and indicated that he sought a
"complete investigation, and appropriate action taken." Nowhere
did Fitzgerald mention that he had suffered emotional injuries
resulting in hospitalization, and he did not request any form of
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monetary compensation.
After investigation, the VA mailed to Fitzgerald a certified
offer of full relief. As stated in the offer, the VA promised to:
(1) provide Fitzgerald with a "fair and equitable work environment"
free from discrimination; (2) ensure that Fitzgerald would not be
assigned to work on the same shift as the harasser; and (3)
formally discipline the harasser. It did not offer to pay
Fitzgerald any form of monetary compensation. Further, the offer
informed Fitzgerald that if he refused to accept the offer within
30 days, his complaint would be dismissed. Notably, Fitzgerald was
also advised that he could call the director of the medical center
to discuss the offer of relief. The record contains no evidence
that Fitzgerald ever made such a call.
After Fitzgerald failed to respond to the offer of full relief
within 30 days, the VA informed him of its final decision to
dismiss his complaint. In this missive, the VA also advised
Fitzgerald that he had the right to appeal the VA's decision to
dismiss his claim. After Fitzgerald filed his notice of appeal,
the EEOC informed him of his right to file any statement or other
material in support of the appeal. The record indicates, however,
that Fitzgerald filed his appeal without comment. Again, we
emphasize that Fitzgerald had the opportunity to inform the EEOC as
to why the certified offer of full relief was inadequate, but he
failed to do so.
The EEOC decision affirming the VA's dismissal of the
complaint also apprised Fitzgerald that the EEOC might reconsider
11
its decision if Fitzgerald were to submit a written request
containing argument or evidence tending to establish, inter alia,
that: "[n]ew and material evidence is available that was not
readily available when the previous decision was issued;" or "the
previous decision involved an erroneous interpretation of law,
regulation or material fact...." The record does not show that
Fitzgerald requested reconsideration.
As we noted in Francis, 58 F.3d at 193, a claimant "is not
entitled to relief outside the scope of his claim." Our review of
the record discloses that Fitzgerald made no effort to notify
either the VA or the EEOC of the particular circumstances of his
Title VII claim that might warrant an offer of compensatory
damages. The VA's settlement offer fully disposed of those
concerns actually presented by Fitzgerald, and as such, it was an
offer of full relief. Because Fitzgerald rejected an offer of full
relief, he has failed to exhaust his administrative remedies, see
Francis, 58 F.3d at 193, and we affirm the district court's order
dismissing his civil suit.1
1
Fitzgerald asserts on appeal that the VA and the EEOC were
aware that he had been hospitalized as a result of the
harassment. The record, however, discloses no such evidence. In
his brief, Fitzgerald is unable to cite to any portion of the
record that indicates that the investigating agencies were aware
of his damages. In oral argument, Fitzgerald points only to the
affidavit of Shirley Carson, a medical center nurse assistant who
represented Fitzgerald during the administrative process. In
this affidavit, Carson states the following:
I attended a meeting that Mr. Robert Dawson (the
Medical Center Director) and Mr. Fitzgerald attended.
In the meeting, the Director discussed Mr. Fitzgerald's
EEO complaint and offered relief to Mr. Fitzgerald.
Mr. Fitzgerald did not tell the Director that Mr.
12
III
Fitzgerald also appeals the district court's denial of his
motion to amend his complaint to include state-law claims against
the pharmacist who allegedly harassed him. We review the denial of
a motion to amend the complaint for abuse of discretion. See Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). The magistrate judge
recommended denying Fitzgerald's motion because it was filed long
after Louisiana's one-year prescription period for tort actions.
See La. Civ.Code art. 3492. We agree.
First, Fitzgerald's contention that the pharmacist's actions
constituted a continuing tort that interrupted the limitations
period are without merit because he does not allege that the
pharmacist continued her racist and harassing behavior at any point
after May 1992. Fitzgerald also contends that because the
Secretary and the pharmacist are solidary obligors, his filing of
Fitzgerald wanted money as compensation for the
harassment. After the meeting, Mr. Fitzgerald told me
he wanted money as compensation. Mr. Fitzgerald told
me he did not believe it was his responsibility to ask
for money. He said it was the duty of the Medical
Center Director to offer money. I told no one he
wanted compensatory damages. Mr. Fitzgerald told no
one in my presence that he wanted compensatory damages.
This affidavit does not demonstrate that the VA or EEOC
investigators knew that Fitzgerald sought monetary damages;
in fact, it is telling evidence to the contrary. Further,
even if we were to assume, for the sake of argument, that
someone in the VA knew that Fitzgerald had been hospitalized
as a result of his harassment, we recently held that "a
plaintiff who cooperates during the investigation of her
informal complaint but refuses to cooperate after filing a
formal complaint" may not rely on her cooperation during the
informal investigation to satisfy the exhaustion
requirement. See Barnes v. Levitt, 118 F.3d 404, 409-10
(5th Cir.1997).
13
the administrative claim against the Secretary within one year of
the tortious conduct interrupts prescription against the
pharmacist. See La. Civ.Code art. 1799 ("The interruption of
prescription against one solidary obligor is effective against all
solidary obligors and their heirs."). As the magistrate judge
noted, however, even assuming, arguendo, that the Secretary and the
pharmacist are solidary obligors, Fitzgerald points to no authority
for the proposition that the filing of an administrative complaint
against the Secretary interrupts the prescription period. See La.
Civ.Code art. 3462 (stating that prescription is interrupted when
"the obligee commences action against the obligor, in a court of
competent jurisdiction and venue" (emphasis added)).
Finally, Fitzgerald argues that by making an offer of full
relief, the VA "acknowledged" his claims, thereby interrupting the
prescription period. See La. Civ.Code art. 3464. The Louisiana
courts have repeatedly held, however, that an offer to settle a
disputed claim should not be deemed an acknowledgment that
interrupts prescription pursuant to art. 3464 unless it is
unconditional and admits liability. See, e.g., Wright v.
Louisiana-Pacific Corp., 662 So. 2d 853, 856 (La.Ct.App.1995). In
this case, the VA does not admit liability, for it has never
acknowledged that discrimination occurred.
Therefore, we conclude that the district court did not abuse
its discretion in denying Fitzgerald's motion to amend his
complaint.
IV
14
For the foregoing reasons, the district court's order
dismissing Fitzgerald's suit is affirmed.
AFFIRMED.
15