0520150438
12-09-2015
Mary Ann Lunderman, a/k/a Judi S.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mary Ann Lunderman, a/k/a
Judi S.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 0520150438
Appeal No. 0720140001
Hearing No. 541-200-00035X
Agency No. DAL070487SSA
DECISION ON REQUEST FOR RECONSIDERATION
On July 6, 2015, the Agency timely requested reconsideration of the decision in EEOC Appeal No. 0720140001 (June 2, 2015). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to the underlying complaint, Complainant worked as a Hearing Office Chief Administrative Law Judge (HOCALJ) of the Agency's Albuquerque, New Mexico, office, serving as head of the office. She was removed from heading the office. Complainant filed an equal employment opportunity (EEO) complaint alleging that she was discriminated against based on reprisal for prior EEO activity when after accepting an offer to be reassigned as an HOCALJ hearing cases and working on special projects (allowing her to remain in management), the Agency rescinded the offer - removing her from her newly appointed function and from management.
Our prior appellate decision affirmed the decision of an Equal Employment Opportunity Commission Administrative (EEOC) Administrative Judge (AJ) who, following a hearing, concluded that Complainant established by a preponderance of the evidence that she was subjected to retaliatory discrimination when on May 21, 2007, she was removed from her newly appointed position.2
In its request for reconsideration, the Agency expresses its disagreement with the finding of discrimination in the previous decision as well as the remedies provided.
As remedy for being removed from her newly appointed position, the EEOC AJ ordered that for a period of two years from the date of the Agency's final order, the Agency provide Complainant the first opportunity to work as a designated HOCALJ on any HOCALJ special projects for which she was qualified in Region VI, other than such special projects undertaken by an existing HOCALJ for their own office. The AJ did not order back pay.3
On appeal, neither party challenged the relief awarded by the AJ. In our appellate decision, we found that make whole relief included additional relief. Accordingly, we ordered that the Agency offer Complainant "the position of HOALJ for special projects in Region VI, retroactive to May 21, 2007" and "back pay and benefits, with interest, including intervening step increases Complainant may have lost, for the period of May 21, 2007, to the date of this decision."
In its request for reconsideration, the Agency argues that nothing in the record suggests that Complainant's newly appointed position was intended as an indefinite assignment, that Complainant's first line supervisor testified that this was not an actual position in the Agency, and that special projects only came up from time to time. The Agency argues that Complainant is not due back pay. It contends that while an administrative law judge is entitled to receive an advance to the next step in rate of pay for additional administrative and management duties, Complainant was already at the maximum pay rate of "F."
In opposition to the Agency's request for reconsideration, Complainant asks that our appellate decision be affirmed. She makes no specific arguments regarding remedies.
ANALYSIS AND FINDINGS
A reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Regarding the finding of discrimination in our appellate decision, the Agency fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the Agency's request on that matter.
Complainant's first line supervisor explained that the purpose of offering Complainant the position of HOCALJ hearing cases and doing special projects was to allow her to remain in management. Hearing Transcript (HT), 664, 696 - 697. While, as argued by the Agency, Complainant's first line supervisor testified that there was no position description for the job of HOCALJ for special projects, and no such position existed in the Agency, she also testified that regional chiefs get to utilize management employees without a reduction in grade or change in location to handle special projects. She testified that from time to time, special projects come along which require someone full-time. HT, 723. Complainant expressed that she did not want to work outside Albuquerque, and the record indicates the newly appointed position would have permitted her to remain there. HT, 386, 695. Complainant explained that it was intended that she would work directly with her first line supervisor on special projects while still carrying a full caseload. HT, 386, 393 - 394. After Complainant accepted the offer to work on special projects, on May 9, 2007, her first line supervisor sent out an email to management and staff that Complainant "agreed to work on a project that will require a great amount of her time. In addition she will continue to hear cases." Joint Hearing Exhibit 8. Complainant testified that the referenced project was dealing with low producing judges. HT, 393. Her first line supervisor stated that she rescinded the special projects offer because she wanted Complainant out of management. HT, 711 - 712.
Based on the above, we have decided to modify paragraphs 1 and 2 of our order in our appellate decision. The Agency shall offer to reinstate Complainant to management status effective May 21, 2007. It shall also provide her the opportunity to work as a designated HOCALJ on any available HOCALJ special project that is mutually agreed upon by the parties (the record reflects that when Complainant was offered the opportunity to work on a special project, she was given input on what was suitable for her). Further, Complainant must be offered to do so while located in Albuqueque (or other places, if Complainant consents). We will retain the back pay, benefits and interest paragraph, but modify it to note that if there was no loss in wages, no back pay is due.4
Regarding the finding of discrimination in our appellate decision, the Agency's request for reconsideration is denied. We are modifying paragraphs 1 and 2 of the order in our appellate decision.
ORDER
To the extent that it has not already done so, the Agency is hereby ordered to:
1. The Agency shall offer to reinstate Complainant to the status of management, retroactive to May 21, 2007. Complainant will have 15 days to accept this offer, and must do so in writing. If Complainant declines the offer, her entitlement to back pay, if any, will cease on the date she declines. If Complainant accepts, the Agency shall provide her the opportunity to work as a designated HOCALJ on any available HOCALJ special project that is mutually agreed upon by the parties. Further, Complainant must be offered to do so while located in Albuqueque (or other places, if Complainant consents). These actions must be completed within 120 calendar days from the date this decision becomes final.
2. Within 120 calendar days from the date this decision becomes final, the Agency must pay Complainant back pay and benefits, with interest, including intervening step increases Complainant may have lost, for the period of May 21, 2007, to the date of this decision. All back pay calculations should be computed in accordance with 5 C.F.R. � 550.805. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. This paragraph only applies if removing Complainant from management and/or working on special projects resulted in a reduction of her wages or impacted her step level then or subsequently.
3. Within one hundred and twenty days (120) from the date this decision becomes final, that Agency shall pay Complainant $95,000.00 in non-pecuniary damages.
4. Within one hundred and twenty days (120) from the date this decision becomes final, the Agency shall pay an award of $76,888.00 in attorney's fees, $5,382.00 for the gross receipt tax, and $4,912.00 for costs. Additionally, within one hundred and twenty days (120) from the date this decision becomes final, Complainant shall provide the Agency with her doctor's bills during the relevant time period reflecting her out-of-pocket costs for treatment, as directed in the AJ's decision.
5. Within one hundred and twenty days (120) from the date this decision becomes final, the Agency shall provide the RCAJ with at least sixteen (16) hours of in-person training on EEO issues and merit systems principles, with a focus on retaliation.
6. The Agency shall consider taking appropriate disciplinary action against the RCAJ. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
7. The Agency shall post the notice discussed below.
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 verifying that all of the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
POSTING ORDER (G0914)
The Agency is ordered to post at its Albuquerque, New Mexico facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 9, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The AJ also found the following comment by the Regional Chief Administrative Judge (RCAJ), Complainant's first line supervisor, to Complainant was per se retaliation: "this is the way people are... they are not going to change. They're going to keep filing [EEO complaints]. What do you want me to do? It's easier for me to get rid of you than deal with them." In our appellate decision, we wrote that because Complainant's removal from the position of HOCALJ working on special projects (and hearing cases) was discriminatory, we need not address whether the comment was per se retaliation.
3 The AJ and our appellate decision ordered other relief, which is not at issue here.
4 While leave is a benefit, the AJ specifically declined to award Complainant leave, and she has not contested this. Accordingly, Complainant is not entitled to restoration of leave.
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