Otis B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 12, 2020

0120180819 (E.E.O.C. Mar. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Otis B.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120180819 Hearing No. 531-2015-00331X Agency No. HQ140864SSA DECISION On January 8, 2018, Complainant, through his attorneys, filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission). BACKGROUND Complainant worked for the Agency as an Information Technology Specialist, GS-12, in Woodlawn, Maryland. On November 18, 2014, Complainant filed an EEO complaint alleging the Agency discriminated against him because of his disability and/or unlawful retaliation for prior protected EEO activity when Agency management failed to provide him with an effective reasonable accommodation for his disability, resulting in his removal from federal service on August 4, 2014. The Agency accepted the complaint. On May 19, 2015, when the Agency’s investigation of the complaint was not completed in 180 days as required by 29 C.F.R. § 1614.108(f), Complainant requested a hearing before an EEOC Administrative Judge (AJ). On that same date, Complainant filed a motion with the AJ to sanction the Agency for its failure to complete the investigation in 180 days. 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. 0120180819 2 On July 11, 2015, while the motion was pending, the Agency transmitted the report of investigation to Complainant, his counsel and the AJ, 53 days after the 180-day deadline for completion of the investigation. On April 19, 2016, AJ issued an Order Granting Complainant’s Motion for Sanctions, finding that the Agency failed to timely complete its investigation. However, in doing so, the AJ denied Complainant’s demand for a default judgment as the sanction. Instead, the AJ ordered the Agency to pay Complainant attorney’s fees of $14,966.63, representing time spent securing the completed investigation. The AJ’s order did not provide for the payment by a particular date, the Agency was not directed to issue a final order on the AJ’s order, and no appeal rights were provided to either party. To date, it is undisputed that the Agency has not paid the attorney’s fees. Subsequently, over Complainant's written objections, the AJ granted the Agency’s November 4, 2016 motion for summary judgment, and issued a decision dated October 25, 2017, in favor of the Agency. The AJ’s final decision only addressed the merits of Complainant’s disability discrimination and retaliation claims and did not repeat or address his earlier April 2016 order for attorney’s fees. The AJ’s decision was transmitted to the parties on October 26, 2017, with an Order Entering Judgment which stated in its entirety: For the reasons set forth in the Decision dated Wednesday, October 25, 2017, judgment in the above-captioned matter is hereby entered in favor of the Acting Commissioner of the Social Security Administration. A notice of appeal rights is attached hereto. Like the AJ’s decision, the Order Entering Judgment made no reference to the April 2016 sanctions order. On November 1, 2017, Complainant filed a motion with the AJ seeking enforcement of the attorney’s fees sanction. The Agency filed a reply on November 28, 2017. It appears from the record that the AJ never responded to this motion. On December 7, 2017, the Agency issued its final order adopting the AJ’s October 25, 2017 decision concluding Complainant failed to prove that the Agency subjected him to discrimination or retaliation as alleged. Like the AJ’s decision, the final order does not reference the sanctions order. The instant appeal by Complainant followed. In his January 31, 2018 appellate brief, submitted by and through his legal counsel, Complainant clearly indicates that the sole issue on appeal concerns the Agency’s failure to comply with the AJ’s April 2016 interim order concerning the 0120180819 3 payment of attorney’s fees. He requests that the Commission enforce the AJ’s order and increase the sanction by issuing a default judgment to remedy the Agency’s non-compliance. ANALYSIS AND FINDINGS On appeal, Complainant is seeking only one thing from this Commission - the enforcement of the AJ’s April 2016 order directing the Agency to pay Complainant $14,966.63 in attorney’s fees. We conclude, however, that the April 2016 order was an interim order that was never finalized by the AJ in his October 26, 2017 Order of Judgment or the accompanying October 25, 2017 final decision by the AJ on the merits of Complainant’s discrimination and retaliation claims.2 In its final order, the Agency fully implemented the AJ’s October 2017 final decision which made no reference to the April 2016 interim order. The record is silent as to why the AJ chose not to finalize the interim order even in the face of Complainant’s November 1, 2017 motion for enforcement filed with the AJ. Regardless, we currently have no final order from the AJ to enforce. Accordingly, the appeal seeking enforcement of the AJ’s April 2016 interim order is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 2 EEOC’s Management Directive 110 (MD-110) provides that the “40-day period within which an agency must take final action does not commence until the Administrative Judge issues an order advising the agency that the decision of the Administrative Judge is the final decision and that the agency must take final action within 40 days of its receipt thereof.” MD-110, Chap. 9, Sect. II (A)(1)(a) (August 5, 2015). 0120180819 4 at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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 (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. 0120180819 5 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 March 12, 2020 Date