01A14263
02-12-2003
Franklin Smithson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Franklin Smithson v. Social Security Administration
01A14263
February 12, 2003
.
Franklin Smithson,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A14263
Agency No. 930-372
DECISION
Following a finding that the Social Security Administration (�agency�)
discriminated against Franklin Smithson (�complainant�), the Equal
Employment Opportunity Commission (�EEOC� or �Commission�) ordered the
agency to conduct further investigation to determine the proper amount
of compensatory damages due to complainant. See Smithson v. Social
Security Admin., EEOC No. 01A03598 (August 22, 2000). The agency issued
a Final Agency Decision (FAD) on April 13, 2001, granting complainant
$1000.00 in nonpecuniary damages and determined that he was not entitled
to any additional compensatory damages. Complainant appealed the FAD
to the Commission. After a careful review, the Commission AFFIRMS the
agency's FAD.
Complainant, formerly a Social Insurance Specialist, GS-12, at the
agency's Office of Disability Operations in Baltimore, Maryland, filed
formal EEO complaints on February 24, 1993, and on December 10, 1997,
alleging that the agency discriminated against him when (1) he was not
selected for four positions to which he had applied, (2) the agency
violated a settlement agreement dated July, 1992, which resulted from
a prior informal EEO complaint, and (3) for an unspecified period of
time, the agency engaged in unauthorized release of information from
complainant's social security disability file.<1> At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ conducted a hearing addressing the
nonselection issues from the 1997 complaint, as well as the unresolved
issues from the 1993 complaint. The AJ found no discrimination occurred
and the agency issued a final order implementing the AJ's decision.
Complainant appealed this decision to the Commission and in Smithson
v. Social Security Admin., EEOC Appeal No. 01A03598 (August 22, 2000),
the Commission found that the agency discriminated against complainant
for failing to select him for the position of SICE Disability Specialist,
GS-12, Vacancy Announcement No. M-662. The Commission ordered complainant
to be offered the position and to further investigate complainant's
entitlement to compensatory damages for losses incurred as a result of
the agency's discriminatory actions. Id.
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence warrants
a modification of the agency's remedial ruling. See 29 C.F.R. �
1614.405(a).
Whenever an agency is liable for unlawful employment discrimination, it
must provide complainant with full, �make-whole� relief to restore the
complainant as nearly as possible to the position he or she would have
been in absent the discrimination. Cf. Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422
U.S. 405, 418-19 (1975). In light of the Civil Rights Act of 1991,
this �make-whole� relief now includes the payment of compensatory
damages for intentional employment discrimination violating Title VII,
the ADA, and/or the Rehabilitation Act. See, e.g., 42 U.S.C. � 1981a(a);
see also West v. Gibson, 527 U.S. 212 (1999) (where the Supreme Court
affirmed the EEOC's statutory authority to award compensatory damages to
complainants who prevail on administrative federal sector complaints).
Compensatory damages �are awarded to compensate a complaining party for
losses or suffering inflicted due to the discriminatory act or conduct,�
and ��may be had for any proximate consequences which can be established
with requisite certainty.'� Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991 (July 14, 1992), 4. To recover damages, the complaining party
must prove that the employer's discriminatory act or conduct was the
cause of the loss and that whether the complaining party incurred the
losses as a result of the employer's discriminatory action or conduct.
Id. at 5. Such compensatory damages include �damages for past pecuniary
loss (out-of-pocket loss), future pecuniary loss, and nonpecuniary loss
(emotional harm).� Id.
The agency found that complainant did not sufficiently establish that he
was entitled to a significant amount of compensatory damages because did
not provide information responsive to the agency's inquiries as to what
harm he had suffered as a result of the discrimination. Generally, the
complainant must cooperate with the agency's inquiries. We note that
complainant's brief on appeal lacks any evidence that would support his
claim for additional damages. The FAD awarding $1,000.00 in compensatory
damages is therefore affirmed and the agency is ordered to comply with
the ORDER below.
ORDER (C0900)
The agency shall take the following action, to the extent that it has
not already done so, within sixty (60) days of the date this decision
becomes final:
Pay complainant $1000.00 in nonpecuniary damages.
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
February 12, 2003
__________________
Date
1 The issues in the February 24, 1993
complaint were investigated and a FAD was issued by the agency on
May 15, 1995, addressing only the nonselection issues and finding
no discrimination. Complainant appealed the FAD to the Commission.
We reversed and remanded the entire complaint.