Fitzgerald v. Sec US Dept of Vets ( 1997 )

  •                  United States Court of Appeals,
                                Fifth Circuit.
                                No. 96-30731.
                 Michael FITZGERALD, Plaintiff-Appellant,
                                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.
         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
    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
    918 F.2d 1073
    , 1078 (2d Cir.1990).            The district court
    agreed, and   dismissed   the    suit.   In   an    unpublished   opinion,
    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
         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.
            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,
    58 F.3d at 192;    Brown v. General Servs. Admin., 
    425 U.S. 820
    , 832-
    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),
           If the complaining employee refuses to accept an offer that
    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.").
         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 §
    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
            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
    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
    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
    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);
    Haynes v. United States Postal Serv., EEOC Appeal No. 01922811,
    1993 WL 762904
     (Dec. 14, 1993).
           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,
    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
    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
    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
          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.
            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).
    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
         For   the   foregoing   reasons,   the   district   court's   order
    dismissing Fitzgerald's suit is affirmed.