07a50089
09-29-2005
Andrina Wilkinson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Andrina Wilkinson v. Social Security Administration
07A50089
09-29-05
.
Andrina Wilkinson,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 07A50089
Agency No. 03-0040-SSA
Hearing No. 160-2005-00131X
DISMISSAL OF APPEAL
On July 6, 2005, the agency received a copy of a bench decision issued
by an EEOC Administrative Judge (AJ) finding that it had discriminated
against the complainant on the basis of disability (low vision
impairment) when the agency terminated her, effective June 28, 2002.
At the conclusion of a hearing held on April 20 and April 22, 2005,
the AJ found that the agency: (1) treated complainant differently
from individuals not in her protected class; (2) denied complainant a
reasonable accommodation for her low-vision impairment; and (3) failed
to provide legitimate, non-discriminatory reasons for terminating her.
The AJ ordered, among other things, that the agency make complainant
an offer of immediate reinstatement, retroactive to the date of her
removal, to the Crown Heights District Office. On August 12, 2005, the
agency issued its final order. The agency rejected the AJ's decision and
indicated that it was filing an appeal with the Commission. The Agency's
appeal was postmarked August 12, 2005, and its brief was filed on August
31, 2005.
EEOC Regulation 29 C.F.R. �� 1614.505 (a)(1) and (4) provides that:
When the agency appeals and the case involves removal, separation,
or suspension continuing beyond the date of the appeal, and when the
administrative judge's decision orders retroactive restoration, the
agency shall comply with the decision to the extent of the temporary or
conditional restoration of the employee to duty status in the position
specified in the decision, pending the outcome of the agency appeal.
The employee may decline the offer of interim relief.
The agency shall notify the Commission and the employee in writing at
the same time it appeals that the relief it provides is temporary or
conditional and, if applicable, that it will delay the payment of any
amounts owed . . . . Failure of the agency to provide notification will
result in the dismissal of the agency's appeal.
EEOC Regulation 29 C.F.R. � 1614.505(b) provides that:
If the agency files an appeal and has not provided required interim
relief, the complainant may request dismissal of the agency's appeal.
Any such request must be filed with the Office of Federal Operations
within 25 days of the date of service of the agency's appeal. A copy of
the request must be served on the agency at the same time it is filed with
EEOC. The agency may respond with evidence and argument to complainant's
request to dismiss within 15 days of the date of service of the request.
On August 25, 2005, the Commission received a letter from complainant's
representative requesting that the agency's appeal be dismissed.
The letter, dated August 19, indicated that the agency did not, at the
time of issuance of its final order, or at any time thereafter, provide
complainant with temporary or conditional restoration to the position
specified by the AJ. The letter indicated that the agency was provided
a copy of the complainant's dismissal request. Our examination of the
agency's final order and its brief indicates that the agency did not
provide notification to complainant and the Commission that it would
provide complainant with temporary or conditional restoration to the
position specified in the AJ's decision. We also note that more than
15 days have elapsed since the agency was notified that complainant was
seeking the dismissal of its appeal.
Accordingly, the agency's appeal is DISMISSED. The Commission directs
the agency to provide the relief set forth below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make the complainant an offer of immediate
reinstatement, retroactive to the date of her removal, to a Service
Representative position, or its equivalent, at the Crown Heights District
Office from which she was removed. Complainant shall be given a minimum
of fifteen days from receipt of the offer within which to accept or
decline. Failure to accept the offer within the time period set by the
agency will be considered a rejection of the offer, unless complainant
can show that circumstances beyond her control prevented a response
within the time limit.
2. The agency shall determine the appropriate amount of back pay with
interest and all other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. If complainant accepts the agency's offer of reinstatement, the
agency shall make an inquiry sufficient to determine the type and amount
of accommodation which is appropriate in this case. The agency's
determination shall include, but not be limited to, conducting an
inquiry of the complainant and her physician in order to determine the
type of assistive devices which are necessary to enable the complainant
to perform the essential functions of her position.
4. The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter. The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of a claim for compensatory damages. Complainant shall
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of her claim. Within forty-five (45) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to compensatory damages, together
with appropriate appeal rights.
5. The agency will provide at least eight (8) hours of EEO-related
training to complainant's former immediate supervisor and the two
District Managers who served at the Crown Heights District Office from
July 16, 2000 to June 28, 2002, if they are still employed with the
agency, regarding their responsibilities under the Rehabilitation Act.
The agency is advised that the Commission does not consider training to
be a disciplinary matter.
6. The agency shall consider taking appropriate disciplinary action
against the managerial employees mentioned in paragraph (5) and to
report its decision to the Commission. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
7. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Copies of all submissions to the Commission shall be sent to the
complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Crown Heights District Office located
in Brooklyn, New York copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____09-29-05______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which
found that a violation of Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Crown Heights District Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Crown Heights District Office has been ordered to remedy an employee
who was denied a reasonable accommodation and removed from employment.
As a remedy for the discrimination, the Crown Heights District Office
was ordered, among other things, to reinstate the employee with back
pay and interest and to provide training to various management officials.
The Crown Heights District Office will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Crown Heights District Office will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614