04A40037
01-14-2005
Maria Vitale, Petitioner, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Maria Vitale v. Social Security Admininstration
04A40037
January 14, 2005
.
Maria Vitale,
Petitioner,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Petition No. 04A40037
Request No. 05A10898
Appeal No. 02980014
Agency No. CL-97-R-0017
DECISION ON A PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an
Order for remedial relief set forth in Maria Vitale v. Social Security
Administration, EEOC Appeal No. 02980014 (June 13, 2001). The petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
Petitioner is profoundly deaf and has been so since birth. She was
employed as a GS-8 Tele-service Representative (TS Rep) at a state
of Washington facility of the agency. In her position, petitioner
provided a full range of customer service assistance to hearing impaired
individuals who called the agency on a toll-free telephone number and
communicated through a Telecommunication Device for the Deaf (TDD).
In 1993, petitioner requested a �hardship transfer�<1> from her position
in Washington state to the Chicago region, a region which included her
home-town of Cincinnati, Ohio. The agency did not respond to petitioner's
initial request, so she submitted another request in 1995. In 1996,
petitioner learned that the Chicago region had several vacant GS-8
Service Representative positions and requested a hardship transfer again
on June 28, 1996. Due to her personal circumstances and in anticipation
of receiving one of the vacant positions in the Chicago region, petitioner
left her Washington position on August 14, 1996 and relocated to Ohio on
August 21. In a letter dated September 9, 1996, the agency stated that,
at the time, the Chicago Region was unable to offer petitioner a Service
Representative or Claims Representative position but could offer her a
Claims Clerk position. Petitioner was on leave without pay for several
months and then accepted a hardship transfer to a GS-5, Step 10 Claims
Clerk position in the Cincinnati, Ohio facility of the agency, effective
December 8, 1996.
Believing she was a victim of discrimination, petitioner filed a grievance
under the negotiated grievance procedure established by her agency and
representative union. Petitioner alleged that the agency discriminated
against her based on disability in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. when it failed to provide her a reasonable accommodation.
The grievance was not resolved under the negotiated grievance procedure,
and, thus, was assigned to a neutral Arbitrator. A hearing was held
and the Arbitrator concluded that petitioner could not perform the
essential functions of the Service Representative position and that the
accommodation that was effective would not have been reasonable, i.e.,
a full-time interpreter.
Petitioner filed an appeal with this Commission, which was docketed as
EEOC Appeal No. 02980014. In EEOC Appeal No. 02980014, the Commission
found that the agency violated the Rehabilitation Act when it failed
to provide petitioner with a reasonable accommodation, i.e., a full-
time or part-time interpreter. In an Order, the Commission instructed
the agency to (1) offer petitioner a GS-8 Service Representative or
substantially equivalent position in its Cincinnati, Ohio facility, (2)
determine the appropriate amount of back-pay with interest, overtime
pay with interest, and other appropriate benefits due to petitioner,
(3) determine petitioner's entitlement to compensatory damages, (4)
post a notice of the finding of discrimination, (5) conduct EEO training
for the responsible management officials, and (6) submit a report of its
actions in compliance with the Order to the Commission. The Commission
further allowed for the award of attorney's fees. Regarding back-pay,
the Commission instructed the agency to calculate back-pay from
�the effective date of the denial of petitioner's 1996 request for a
hardship transfer until the last day of the 30-day period during which
[petitioner] can accept or reject the agency's offer or the effective date
of petitioner's reinstatement to the offered position, whichever comes
first.� Subsequently, on July 19, 2001, the agency initiated a request
for reconsideration to the Commission, which was docketed as EEOC Request
No. 05A10898. In Maria Vitale v. Social Security Administration, EEOC
Request No. 05A10898 (July 29, 2002), the Commission denied the agency's
request and reiterated the Order given in EEOC Appeal No. 02980014.
The agency submitted documentation to the Commission's Office of
Federal Operations to show its compliance with the Commission's Order.
The documentation indicated (1) petitioner was placed in a GS-8, Step 5
Service Representative position at the Cincinnati North office on November
3, 2002 at an annual salary of $41,344 and provided with an interpreter
for the account number line, interview and reception functions of her
position as well as for staff meetings, training and as necessary,
(2) $5,656.44 was deposited in petitioner's bank account in November
2002 and $16,692.80 was deposited in her account in December 2002,
(3) the agency believed that petitioner failed to fully comply with its
discovery for her compensatory damages entitlement (4) it had completed
the notice posting, and (5) that the responsible management official
received EEO training in November 2002. Regarding back-pay, agency
documentation showed that petitioner would have earned $187,951.19 in
gross regular and overtime pay as a GS-8 Service Representative from
December 8, 1996 through November 2, 2002, absent discrimination, and
that instead petitioner earned interim earnings of $169,314.36 with
alternative agency employment. The agency calculated a difference in
gross pay of $18,611.90 and interest due as $5468.11.
Petitioner filed the instant petition for enforcement. Petitioner
asserted that the agency failed to comply fully with the Commission's
Order. Petitioner alleged that (1) the agency failed to hire a full-time
interpreter, which is necessary for her to perform the essential functions
of her Service Representative position, (2) the agency used the wrong
effective date to calculate her back-pay -- stating that August 21,
1996<2>, rather than December 8, 1996, should have been used, (3) she was
preoccupied with addressing the agency's noncompliance while attempting
to collect evidence to prove compensatory damages so the compensatory
damages evidence was submitted late, (4) the agency failed to provide
a copy of its compliance report to petitioner's attorney and (5) it
has failed to award attorney's fees. Specifically, as to contention
(1), petitioner stated that the agency has provided her an interpreter
eight to ten days per month for the entire day and three to five times
per month for half of the day. Petitioner stated that she is alienated
from her peers, the public, and management and sits alone in silence
when the interpreter is absent. Petitioner explained that the agency
has failed to provide her an interpreter during �free time� working on
administrative tasks or reviewing materials.
Initially, we address petitioner's allegation that she was not provided
a reasonable accommodation, i.e., a full-time interpreter, which prevents
her from performing the essential functions of the position in which the
agency was instructed to place her. A review of the record establishes
that, in its appellate statement, the agency argued that petitioner
would need a full-time sign language interpreter to successfully perform
the essential functions of the Service Representative position in the
Chicago Region. Conversely, in her appellate statement, petitioner
requested either a full-time or a part-time interpreter, as after
considering personal breaks and administrative tasks, she believed
that she would require an interpreter approximately 24 hours per week.
Petitioner stated that the agency has provided her an interpreter eight
to ten days per month for an entire day and three to five times per month
for half of the day but has failed to provide her an interpreter during
�free time� working on administrative tasks or reviewing materials.
Petitioner stated that she is alienated in the workplace. We find that
the agency is in compliance with the Commission's Order. Our appellate
decision found that the agency failed to provide petitioner a reasonable
accommodation � a manner in which she could perform the essential
functions of her position. However, based on complainant's contentions,
the agency provided her an interpreter which allows her to perform the
essential functions, but not the non-essential functions or personal time,
of her position. We note that we can not state whether a full-time or
part-time interpreter is required but rather that the agency is required
to provide an interpreter on a basis that allows petitioner to perform
the essential functions of her position.
Next, we address petitioner's contention that the agency failed to use
the correct effective date in calculating back-pay with interest, overtime
pay with interest, and other appropriate benefits. Petitioner indicated
that, on August 21, 1996, she relocated to Ohio, without a position and
in anticipation of receiving one of the vacant Service Representative
positions in the Chicago region, and thus her relocation date should
be used as the effective date. The agency used December 8, 1996,
the effective date of petitioner's placement in a GS-5 Claims Clerk
position as the effective date for calculations. The Commission's
Order instructed the agency to calculate pay and benefits from �the
effective date of the denial of petitioner's 1996 request for a hardship
transfer.� Complainant requested a hardship transfer in 1996 on June 28.
On September 9, 1996, the agency informed petitioner in writing that the
Chicago Region was unable to offer her a Service Representative position.
We find that September 9, 1996 is the date from which the agency should
have calculated petitioner's pay, interest and benefits, and that the
agency should make the appropriate corrections to its calculations,
to the extent that it has not already done so.
As to contention (3) regarding compensatory damages, we note that
petitioner filed an appeal of the agency's final order on the matter,
which was docketed as EEOC Appeal No. 01A44440. Thus, we will not
address compensatory damages in the instant enforcement decision.
Regarding contention (4), the agency did not provide documentation
indicating that it issued a copy of its compliance report to petitioner's
attorney of record. Pursuant to 29 C.F.R. � 1614.605(d), when a
complainant designates an attorney as representative, service of all
official correspondence shall be made to the attorney and the complainant,
with the time-frame for receipt computed based on receipt by the attorney.
Therefore, if it has not already done so, the agency shall issue a
copy of its compliance report to petitioner's attorney representative
of record. Further, regarding contention (5), petitioner did not
indicate that her attorney of record submitted a verified statement
of fees to the agency so that the agency could process the fee claim.
Pursuant to the �Attorney's Fees� section of the Commission's Order, if
petitioner was represented by an attorney, she was entitled to an award of
reasonable attorney's fees incurred in the processing of her complaint.
Her attorney was responsible for submitting a verified statement of fees
so that the agency could pay the appropriate award.
Based upon a review of the record, and for the foregoing reasons, the
Commission GRANTS IN PART the petitioner's petition for enforcement of
the order in Maria Vitale v. Social Security Administration, EEOC Request
No. 05A10898 (July 29, 2002). The agency shall take the actions below.
ORDER
To the extent that it has not already done so, the agency is ordered
to use September 9, 1996 as the effective date from which to calculate
the petitioner's pay, benefits, and resulting interest and to issue
petitioner's attorney of record a report of its compliance.
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 actions in compliance with this order.
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 petitioner 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 petitioner 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 petitioner 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.
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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
January 14, 2005
__________________
Date
1According to the record, a �hardship transfer� is movement to another
position due to difficulties experienced by the employee, typically in
his/her personal life.
2Petitioner noted that, on June 12, 1996, she initiated EEO counseling
regarding the agency's previous denials of her transfer requests so that
date should be the technical effective date for calculation purposes.
However, petitioner explained that she encumbered a GS-8 Service
Representative position in Washington until she relocated to Ohio on
August 21, 1996 so the August date should be used as the effective date.