1 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.

App eal 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 conducting2

an investigat ion into Fitzgerald's claims, the VA, in December

1992, sent Fitzgerald a "certified offer of full relief" pursuant

t o 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 equit able 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 analyz ed 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, an d (2) compensatory damages were not

available to fe deral employees under Title VII. The magistrate

judge thus re commended that Fitzgerald's complaint be dismissed

because the rejection of an offer of full relief constitutes a

failure to exhaust administrative remedies, w hich is a necessary

prerequisite to filing a civil suit. S ee Francis v. Brown, 58 F.3d

191, 192-93 (5th Cir.1995); W renn 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,3

how ever, 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. S ee 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 com pensatory 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 hi s administrative remedies. S ee 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. S ee Francis,4

58 F.3d at 192; B rown v. General Servs. Admin., 425 U.S. 820, 832-

33, 96 S.Ct. 1961, 1967-68, 4 8 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. S ee 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 discr imination at the

administrative level; these regulations set forth procedures by

which federal employe es must pursue charges of discrimination.

Federal employees claiming illegal discrimination need first

consult with an EEO counselor within the employing agency. S ee 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. S ee 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. S ee 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. S ee id. § 1614.501(a),

(c).

If the complaining employee refuses to accept an offer that5

has been certified as an offer of "full relief" by the EE OC, the

employing agency must dismiss the employee's complaint. S ee 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. S ee 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§

1614.408. If, upon de novo revi ew, the district court also

concludes that the agency's offer constitutes full relief, then the

court must di smiss the complaint for failure to exhaust

a dministrative remedies. S ee 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 appea l, 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 compe nsatory

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 dama ges because it is beyond the power of the VA to

offer such. C f. Marsh v. Jones, 53 F.3d 707, 710 (5t h Cir.1995)

(holding that state prisoner seeking only monetary damages in §

1 983 suit need not exhaust administrative remedies pursuant t o §6

199 7e if such remedies do not provide for the award of monetary

relief). Fitzgerald also contends that it would be fundamentally

u nfair 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

compen satory damages against an employer in an "action" brought

pursuant to 42 U.S.C. §§ 2000e-5 or 2000e-16. S ee 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. S ee 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." S e e id. § 2000e-16(b). That subsection also directs the

EEOC to "effectuate the policies of this section, and

... issue7

such rules, regulations, orders a nd 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 com pensatory damages for emotional injuries. In

addition to specifically authorizing back pay, which is a form of

compensatory damages, the statute c harges 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 compe nsatory 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 p rocedures so that aggrieved

employees could "settle disputes through conference, conciliation,

and persuasion" before they are permitted to file lawsuits. S ee

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 dama ges only in district court, they would be

encouraged either to "intentionally bypass the administrative8

process and go straight to district court or perfunctorily go

through the administrative process and then seek judicial review to

obtain full relief." M cAdams 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 proceeding s. 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 q uestion at issue. S ee Iredia v. Immigration and

Naturalizat ion 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 J ackson, the EEOC has repeatedly stated

th at an administrative agency may offer compensatory damages to

Title VII claimants. S ee, 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); R eesey v. Department of the Army, EEOC

Appeal No. 01953812, 1995 W L 702369 (Nov. 9, 1995); C oger 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);9

Hay nes 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 proceeding s, 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 of fer is one of full relief if it

adeq uately resolves the particular claims that an a ggrieved

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 whic h 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 tha t the employee need not present his claim for

compensatory damages in a legal or technical manner. He must,10

however, inform the employing agency or the EEOC of the particular

facts of the case that demonstrate that he has suffered an

emotion al 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 j ustify 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 inj uries

resulting in hospitalization, and he did not request any form of11

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 di scuss 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

w ithin 30 days, the VA informed him of its final deci sion to

dismiss his complaint. In this missive, the VA also advised

Fitzgerald that he had the r ight 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 certif ied offer of full relief was inadequate, but he

failed to do so.

The EEOC dec ision affirming the VA's dismissal of the

complaint also apprised Fitzgerald that the EEOC might reconsider1 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 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 i nterpretation 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 reco rd 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. 1Fitzgerald 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 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. S ee 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 to rt actions.

See La. Civ.Code art. 3492. We agree.

First, Fitzgerald's contention that the pharmacist's actions

constituted a continu ing 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 of14

the administrative claim against the Secretary within one year of

the tortious conduct interrupts prescription against the

pharmacist. S ee 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. S ee 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. S ee 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 pr escription pursuant to art. 3464 unless it is

unconditional and admits liability. S ee, e.g., Wright v.

Louisiana-Pacific Corp., 662 So.2d 853, 856 (La.Ct.App.1995). In

t his case, the VA does not admit liability, for it ha s never

acknowledged that discrimination occurred.

Therefore, we conclude that the district court did not abuse

its discretion in denying Fitzger ald's motion to amend his

complaint.

IV15

For the foregoing reasons, the district court's order

dismissing Fitzgerald's suit is affirmed.

AFFIRMED.