(Complaint).

The Postal Service argues that summary judgment is proper because Gaffney cannot have this
Court review only the denial of compensatory damages. Instead, the Court must review all of the
findings, including liability. Gaffney argues that a de novo trial may be held on only the
compensatory damages issue, and the Court cannot undertake a de novo review of the merits of her
claims.

Federal employees have the same right as private employees to contest an administrative
decision on their discrimination claim. See Chandler v. Roudebush, 425 U.S. 840, 864 (1976)
(Chandler), A plaintiff that is successful in his or her claim of discrimination at the agency level
may file a civil action in federal court to enforce the agency’s final decision. See Moore v. Devine,
780 F.2d 1559, 1563 (11th Cir. 1986) (Moore); Ritchie v. Henderson, 161 F. Supp. 2d 437, 448
(E.D. Pa. 2001) (Ritchie); 29 C.F.R. 1614.503(g). If the plaintiff seeks only to enforce the final
agency’s decision, the federal court does not undertake a de novo review of the agency’s finding of
liability. See Moore, 780 F.2d at 1563; Ritchie, 161 F. Supp. 2d at 448; Malcolm y. Reno, 129 F.
Supp. 2d 1, 5 (D.D.C. 2000) (Malcolm).

An “aggrieved” plaintiff, one that disputes the agency’s “final disposition”, may also file a
civil action in federal court pursuant to 42 U.S.C. 2000e-5. See 42 U.S.C. 2000e-16(c); Chandler,
425 U.S. at 845-46. This civil action is a “trial de novo” and allows a federal employee to enforce
her rights under the statute just as state and private employees have a right to enforce their rights
under the statute, See Chandler, 425 U.S. at 864; Moore, 780 F.2d at 1562; 29 C.F.R. 1614.503(g).
If a plaintiff does not file a civil action, the final decision of the agency is binding on the agency.

Gibson, 137 F.3d at 993; 29 C.F.R. 1614.504(a).


such term is well-recognized as requiring a trial on all the issues of a particular case. Cocciardi, 721
F. Supp. 735. The court noted that the Chandler court, when commenting on the standard of review
stated: ‘Noting in the legislative history indicates that the federal-sector “civil action” was to have
this chameleon-like character, providing fragmented de novo consideration of discrimination
claims....’ Cocciardi, 721 F. Supp. at 737, quoting Chandler, 425 U.S. at 861.

Similarly, in Simpkins v. Runyon, 5 F. Supp. 2d 1347 (N.D. Ga. 1998) (Simpkins), the district
court found that Title VII uses the term “civil action” and, as the term is used in 42 U.S.C. 2000e-5,
means a trial de novo, Trial de novo is commonly understood to mean a complete new trial on the
merits, Simpkins, 5 F. Supp. 2d at 1348-49. See also Ritchie, 161 F. Supp. 2d at 450 (finding that
plaintiff cannot have trial de novo on only the issue of remedy following analysis of above cases);
Boarman y. Sullivan, 769 F. Supp. 904, 908 (D. Md. 1991) (citing Moore, 780 F.2d 1559, in finding
that a plaintiff may not ask for de novo review of only selected issues of the EEOC’s final decision).

The Court finds Cocciardi, Simpkins, Ritchie, and Boarman persuasive and properly
reasoned. The Supreme Court, statute, and regulations use the term “civil action” and “trial de
novo”, which are commonly understood to mean a complete new trial. The statute and regulation
clearly set forth that a plaintiff may file a civil action in federal court to enforce the agency’s decision
or for trial de novo. As set forth above, trial de novo is not required on any issues when a plaintiff
seeks to enforce the agency’s decision because the plaintiff is not contesting any part of the decision.
However, when a plaintiff contests all or any of the agency’s decision and seeks to enforce her rights
under the statute, the plaintiff should not be able to simply pick and choose those aspects of the
agency’s decision he or she disagrees with and seek a second chance on only those issues. Allowing

such a review would let a plaintiff “have his cake and eat it too”. Simpkins, 5 F. Supp. 2d at 1349.


addressed by the court. Second, liability was not contested by the parties. Third, Pecker was
arguably an enforcement action in which the federal court does not undertake a de novo review of
the agency’s finding of liability or, if considered a de novo proceeding, the defendant did not contest
the material elements of liability. See Moore, 780 F.2d at 1563; see also, Ritchie, 161 F. Supp. 2d
at 449; Cocciardi v. Russo; 721 F. Supp 735, 737 (E.D. Pa. 1989) (Cocciardi) (both distinguishing
Pecker on grounds that liability was not contested and facts support the action was an ‘enforcement
action’ as opposed to a fragmented review).

Another, later Fourth Circuit Court case that is also cited for the proposition that a trial de
novo on just the issue of remedies is available to a plaintiff without also having a trial on the issue
of liability is Morris v. Rice, 985 F.2d 143 (4th Cir. 1993) (Morris). In Morris, the court again was
not confronted with the present issue. Instead, the court determined whether it was error for the
district court to consider de novo a question of fact relevant to that of the remedy which had also
been considered and determined by the agency in the context of discrimination when the plaintiff
did not contest the agency’s finding as to discrimination. Morris, 985 F.2d at 146. The Morris
court held that the district could review the factual question because it was related to the issue of
remedies. Morris, 985 F.2d at 145. However, the court, in dicta, stated “the plaintiff may limit and
tailor his request for de novo review, raising questions about the remedy without exposing himself
to de novo review of a finding of discrimination”.? In support of this statement, the Morris court
cites Pecker, 801 F.3d at 711 n.3; Haskins v. United States Dept. of Army, 808 F.2d 1192, 1199 &

n. 3 (6th Cir. 1987) (Haskins); and Moore, 780 F.2d at 1562.

>This is the statement generally cited in later opinions that find a plaintiff may seek a trial
de novo on only the issue of remedies.


In the instant case, Gaffney does not seek to enforce the final agency’s decision. Instead, she
seeks a trial de novo of the agency’s final decision. However, she only seeks a trial de novo of that
part of the agency’s final decision that did not award her compensatory damages. She does not want,
and argues that this Court cannot, conduct a trial de novo on those parts of the decision she does not
contest, i.e., liability on the part of the Postal Service.

This Court was unable to find any Seventh Circuit or district court decision within this circuit
which decided this issue.' Other district court’s have split on the issue, and the Fourth Circuit Court
appears to support Gaffney’s argument. Those courts that hold that a plaintiff may seek a trial de
novo only on the issue of remedies without having a trial de novo on the issue of liability generally
cite to Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986) (Pecker) for support of this proposition.

In Pecker, the plaintiff filed suit in federal court after prevailing in her administrative
proceeding. In federal court, plaintiff argued only that the remedy she received via the administrative
agency was inadequate. The defendant did not contest liability. The district court granted summary
judgment in favor of the plaintiff. Pecker, 801 F.2d at 710.

The circuit court opinion did not address the present issue and did not indicate that it was
argued by the parties. However, ina footnote, the circuit court stated that the defendants were bound
by the EEOC’s findings of discrimination and retaliation. Pecker, 801 F.2d at 711 n. 3. The court
found that the plaintiff should have been awarded greater damages and remanded the case to the
district court to enter an order reflecting such damages. Pecker, 801 F.2d at 713.

Pecker is not persuasive on the present issue for several reasons. First, the issue was not

'Gaffey cites to Gibson v. Brown, 137 F.3d 992 (7th Cir. 1998), as support for argument.
However, the Gibson court did not have the present issue before it and did not decide the issue.

5


In Malcolm, the EEOC found that the plaintiff was subjected to discrimination and set forth
several remedies in a May 3, 1999 decision. Included in that decision was a requirement that the
defendant review and evaluate the plaintiff's claim for compensatory damages. On
November 17, 1999, the EEOC issued a second decision concerning the plaintiff’s claims for
compensatory damages. The plaintiff filed suit in federal court seeking a trial de novo of only the
November 17, 1999 decision. The defendants argued that a trial de novo was also required on the
May 3, 1999 decision. Malcolm, 129 F. Supp. 2d at 3-4. The district court disagreed, finding that
the May 3, 1999 decision constituted a final decision and the plaintiff had sought enforcement and
relief from that decision. The November 17, 1999 decision was a separate final decision to which
plaintiff did seek review, but such review did not require the review of a previous final decision.
Malcolm, 129 F. Supp. 2d at 5. (Emphasis added). The Malcolm court held that in the “unique
situation” before it (two separate final decisions), “[s]eeking de novo review of one final agency
decision does not place a separate, unappealed final agency decision at risk of de novo review.”
Malcolm, 129 F. Supp. 2d at 6.

Here, Gaffney seeks a de novo review of one final decision; however, she only wants those
aspects she disagrees with reviewed. Unlike Malcolm, Gaffney seeks a fragmented review of the
same final decision, Accordingly, Malcolm fails to support Gaffney’s argument.

Other courts have found that a plaintiff cannot fragment his or her trial de novo in the district
court. In Cocciardi, the plaintiff filed a complaint in federal court, seeking review of only the issue
of the remedy awarded by the EEOC. The Cocciardi court held that plaintiff was not entitled to a
fragmented trial de novo but, rather, a full trial de novo was mandated. Cocciardi, 721 F. Supp. at

738. The court found that the Supreme Court in Chandler used the term “trial de novo” and that


Minute Ordet Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 01 C 2889 DATE 5/10/2002
CASE SELENA C. GAFFNEY vs. JOHN E. POTTER
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.}
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue____.

(4) Oo Ruling/Hearingon__setfor___ at

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on setfor_ ss at_—.

(7) im} Trial[set for/re-set for]on__—__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto ss at__

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 CIFRCP41(a)(1) CO FRCP41(a)(2).

ao) [Other docket entry] Status hearing held and continued to June 11, 2002 at 9:00 a.m. Enter
Memorandum Opinion And Order. The Postal Service’s motion for summary judgment is denied. Matter
is referred to Magistrate Judge Ian Levin for settlement conference.

dip @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. -
umber of notices

MAY 13 202

date docketod

Notices mailed by judge’s staff,

Notified counse! by telephone.

vu | Docketing to mail notices.

Mail AO 450 form,

AOA Potietet on docketing deputy initials

Copy to judge/magistrate judge.

courtroom
deputy’s

initials — ———-t

Dateltime received in **
central Clerk's Office

railing deputy initials



USS. 212 (1999) (finding that plaintiff's claims for compensatory damages, including mental anguish,
did not constitute a new cause of action).

In a related argument, the Postal Service argues that summary judgment is proper because
Gaffney did not present a claim for compensatory damages during her administrative proceedings;
therefore, she did not exhaust her administrative remedies as to these damages.

In her complaint to the EEO, Gaffney stated: “for all the stress and other related problems
suffered, Iam seeking $250,000 in punitive damages”. While this statement was not an explicit
request for compensatory damages, it contains language fairly intended to claim compensatory
damages and, more importantly, was so considered to be a request for compensatory damages during
the administrative process. The OFO’s decision on the Postal Service’s request for recommendation
remanded the issue of compensatory damages to the ALJ. The ALJ proceeded to order the parties
to discuss settlement as to compensatory damages. After a settlement was not met, the ALJ declined
to award compensatory damages for ‘stress and other related problems suffered’, finding that
Gaffney failed to provide credible evidence to support an award of such damages. Accordingly, the
language of Gaffney’s complaint put the EEO on notice that she was seeking compensatory damages
and the EEO acknowledged such notice by making rulings on the compensatory damages.
Therefore, the question of compensatory damages was before the administrative agency, and Gaffney

exhausted her administrative remedies as to claims for these damages.

sed on the foregoing, the Postal Service a Summary Judgment is denied.
Dated: 4 10, 2ace

W. snl W. DARRAH
“Inited States District Judge

1]


However, a “[p]laintiff may not have it both ways”. Ritchie, 161 F. Supp. 2d at 450. The purpose
of allowing a plaintiff to file an action in the district court is to provide the plaintiff with the
opportunity to have a trial de novo of his or her claims just a state or private employee may file suit
in federal court. The statute and applicable regulations do not indicate that the intention was to allow
a plaintiff to have a new trial on only those issues that he or she disagrees. See generally Chandler,
425 U.S. at 859. Allowing a review of only certain aspects of the agency’s final decision would not
constitute a trial de novo. Instead, it would more properly be considered an appeal of certain issues.
The statute and regulations do not allow such a review.

Based on the above, Gaffney is not allowed a trial de novo on only the issue of the denial of
compensatory damages. Instead a trial de novo of her claims is required. However, this ruling does
mandate summary judgment in favor of the Postal Service.

The Postal Service argues that summary judgment is proper because Gaffney’s claim for
compensatory damages should be considered a new claim for retaliation that this Court does not have
jurisdiction to hear because Gaffney never raised a retaliation claim before the EEO.

Inher claim for compensatory damages, Gaffney asks to be compensated for embarrassment,
humiliation, emotional pain, mental anguish, loss of enjoyment of life, injury to her professional
standing, and injury to her character and reputation. Under the Civil Rights Act of 1991, claims for
compensatory damages include “future pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment fo life, and other nonpecuniary losses.” See 42 U.S.C. §
1981a(b)(3). Gaffney asks for exactly these types of damages. Accordingly, her claim is one seeking
recovery for the Postal Service’s discrimination rather than a brand new claim of retaliation. See

Gibson y, Brown, 137 F.3d 992, 994 (7th Cir. 1998), rev’d on other grounds, West v. Gibson, 527

10


The cases cited by Morris fail to support the statement. For the reasons set forth above,
Pecker does not support such a broad statement. In addition, Haskill was cited for the proposition
that a federal employee may seek enforcement of an agency decision without risking de novo review.
This proposition was not at issue and is distinct from a case where a plaintiff files suit contesting an
agency’s final decision. A plaintiff seeking enforcement of an agency decision is not contesting any
portion of the final decision, is not seeking a different ruling, or asking the district court to review
any portion of the decision. The plaintiff simply wants the district court to enforce what has already
been decided. Lastly, the language cited from Moore, that an agency is bound by the final decision,
fails to support the proposition that a fragmented review is allowed. An agency is only bound by the
final decision if the final action is not the subject of an appeal or a civil action. See 29 C.F.R.
1614.504(a). Accordingly, if the plaintiff files a civil action to enforce her rights under the statute,
the agency is no longer bound by the final decision and may contest liability. More importantly, the
Moore court held that “where ... the employee files a complaint asking the district court to consider
the case on the merits and proceeds to trial de novo of the very claims resolved by the EEOC, he or
she cannot complain when the district court independently resolves the claims on the merits.”
Moore, 780 F.2d at 1564. This holding is inconsistent with the Morris court’s statement set out
above and in Gaffney’s argument; instead, it supports the opposite conclusion asserted by the Postal
Service. See also Simpkins v. Runyon, 5 F. Supp. 2d 1347, 1351 (N.D. Ga. 1998) (Simpkins) (finding
statement in Morris was not supported by precedent upon which it was based).

Gaffney cites to Malcolm, 129 F. Supp. 2d 1, in support of her argument of a district court
“that got it right”. However, a careful reading of Malcolm demonstrates that Malcolm did not decide

the present issue and is distinguished from this case.


December 4, 1998, the OFO reversed the final agency decision and remanded the case to the ALJ.
The OFO ordered the agency to offer Gaffney a Forfeiture Specialist, EAS 16, or equivalent position,
pay back-pay and benefits due, and pay attorney’s fees. (OFO Decision, p. 3-4).

On December 30, 1998, the Postal Service requested reconsideration of the OFO’s decision.
(Plaint.’s 56.1(a)(3) Statement J 13). On March 30, 2000, the Postal Service’s request was denied.
The OFO ordered the Postal Service take remedial action, including offering Gaffney placement in
a Forfeiture Specialist, EAS-16, position, back-pay, interest, and benefits. It also remanded the
issues of attorney’s fees, costs, and compensatory damages to the hearings unit of the appropriate
EEOC field office. (Id., at ] 14). On June 26, 1993, Gaffney was appointed to the position of
Forfeiture Specialist, EAS-16. (Id., { 16).

On June 1, 2000, the ALJ issued an order for Gaffney to submit a verified statement of fees
and ordered the Postal Service to contact Gaffney to initiate settlement discussions on the issue of
compensatory damages. (Plaint.’s 56.1(a)(3) Statement { 19). On September 1, 2000, the ALJ
awarded Gaffney $8,764.22 in attorney’s fees and costs. He did not award compensatory damages,
finding that she failed to prove such damages. (Id., at § 20). On January 25, 2001, the Postal Service
issued a final agency decision adopting the ALJ’s decision on attorney’s fees and compensatory
damages.

On April 23, 2001, Gaffney filed the present suit, seeking a review of the denial of
compensatory damages. (Def.’s 56.1(a)(3) Statement 13). Gaffney alleges that the demotion and
nonselection to the Forfeiture Specialist, EAS-16, position adversely impacted her relationships,
stress from the situation contributed and worsened her physical well-being, and made her have

feelings of humiliation, embarrassment, mental anguish, and emotional pain and suffering.


African-American female, had been employed as a Forfeiture Specialist, EAS-14, for the Postal
Service. (Id., at J 2). Gaffney bid on retaining her Forfeiture Specialist position, which was
reclassified to a grade level EAS-16. The position was filled by a white male who did not have
previous experience. (Id., at ]3). Gaffney was appointed to the position of Operations Technician,
EAS-11, but she retained her grade fourteen level pay. (Id., at ] 4).

On October 11, 1994, Gaffney filed a formal Equal Employment Opportunity (“EEO”)
complaint of discrimination, alleging race, sex, national origin, and age discrimination. (Def.’s
56.1(a)(3) Statement ¥ 5). Gaffney’s complaint did not include a claim for retaliation. (Id., at ] 6).
Her complaint sought her return to her former position, an award of back-pay, any needed re-
training, and $250,000 in punitive damages “for all the stress and other related problems suffered”.
(EEO Complaint, {J 16). Shortly after filing her complaint, Gaffney received a notice requesting an
affidavit including an itemized listing of compensatory damages. Gaffney submitted the requested
affidavit. The affidavit did not include a claim for, or entitlement to, compensatory damages.
(Def.’s 56.1(a)(3) Statement § 17; Def.’s exhibits 3, 4).

On December 30, 1996, following a hearing, an administrative law judge (“ALJ”) found that
Gaffney had been discriminated against on the basis of race and sex when she was not selected for
the EAS-16 Forfeiture Specialist position. (Plaint.’s 56.1(a)(3) Statement ]]6). As corrective action,
the ALJ recommended that Gaffney be offered a Forfeiture Specialist or equivalent position and that
she receive retroactive “make-whole relief’. (Id., at 7).

On March 14, 1997, the Postal Service issued a final agency decision rejecting the ALJ’s
decision. (Def.’s 56.1(a)(3) Statement { 8). In April 1997, Gaffney filed an appeal with the Equal

Employment Opportunity Commission Office of Federal Operations (“OFO”). (Id., at 79). On


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SELENA C, GAFFNEY, ) MAY 13 2002
)
Plaintiff, )
) No. 01 C 2889
Vv. )
) Judge John W. Darrah
JOHN E. POTTER, POSTMASTER GENERAL, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Selena Gaffney (“Gaffney”), filed suit against Defendant, John E. Potter as
Postmaster General of the United States Post Office (“Postal Service”), seeking reversal of the
denial of compensatory damages for her successful claims of discrimination against the Postal
Service. Before the Court is the Postal Service’s Motion for Summary Judgment.

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in
the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co., 203 F.3d
997, 1003 (7th Cir. 2000). However, the nonmovant must still come forward with evidence
establishing the elements of its claim on which it bears the burden of proof at trial. As such, it must
establish specific facts that show there is a genuine issue for trial. Miller, 203 F.3d at 1003.

In May 1993, the Postal Service completed an organizational restructuring. (Plaint.’s

56.1(a)(3) Statement { 1). For approximately five years prior to the restructuring, Gaffney, an