Matilde M.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 24, 2018

0520170606 (E.E.O.C. Jan. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Matilde M.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Request Nos. 0520170606; 0520180195

Appeal Nos. 0120162569; 0120171598

Agency Nos. HQ-13-0339-SSA; HQ-16-0821-SSA

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal Nos. 0120162569 and 0120171598 (July
18, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a
request to reconsider any previous Commission decision issued pursuant to 29 C.F.R.
§1614.405(a), 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).

In Complainant’s underlying complaint, she alleged that the Agency subjected her to sex and
disability discrimination. Following an investigation, the Agency concluded that Complainant
had proven that she was subjected to harassment, denial of reasonable accommodation, and
constructive discharge. By way of remedies, the Agency issued an order to: post a notice of the
finding of discrimination; reinstate Complainant to a GS-12 position within a reasonable distance
from her residence and appropriate to her skills; provide back pay with interest from the date of
termination through the date of reinstatement; reimburse all lost contributions to the thrift
savings plan with matching Agency funds; pay annual and sick leave; continue Complainant’s

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.
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health and life insurance payments; expunge records reflecting negative performance or behavior
on the part of Complainant; conduct a supplemental investigation regarding compensatory
damages; provide training to management; and pay attorney’s fees and costs. The Agency
subsequently issued a decision on compensatory damages, dated June 27, 2016, awarding
Complainant $150,000 in nonpecuniary, compensatory damages and $19,240.83 in pecuniary
damages. The Agency also issued a decision, dated February 24, 2017, dismissing Complainant’s
August 30, 2016, formal complaint alleging that the Agency subjected her to reprisal and
disability discrimination when it rescinded its offer to reinstate her. Following these decisions,
Complainant filed two separate appeals which the Commission consolidated into a single
decision. In the decision on appeal, we found that the Agency failed to provide evidence to show
that it reinstated Complainant or provided her with back pay and other benefits, and we
remanded the matter to the Agency for full compliance.

In its request for reconsideration, the Agency largely reiterates arguments made on appeal,
including its contention that Complainant repeatedly failed to accept its offers of employment. A
review of the record shows that this argument was fully considered and rejected on appeal. The
Agency also argues in its request that it has provided Complainant with all back pay and
benefits, however the evidence provided does not support this contention. Accordingly, after
reviewing the previous decision and the entire record, the Commission finds that the request fails
to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal Nos. 0120162569 and 0120171598 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER

Within 30 calendar days of the date this decision is issued, the Agency is ORDERED to offer
Complainant a position reinstating her to a GS-12 position within her skills and commuting
distance. Complainant will be provided with the option of accepting or rejecting the offer. If
Complainant accepts the offer of the position, back pay shall be calculated from the date she was
constructively discharged to the date she enters her new position. If Complainant rejects the offer
of the position, back pay shall be calculated from the date she was constructively discharged to
the date she rejected the position offered by the Agency.
The Agency shall determine the appropriate amount of back pay, with interest, and other benefits
due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than 60 calendar days after the date
this decision was issued. 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 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. The petition for clarification or
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enforcement must be filed with the Compliance Officer, at the address referenced in the
statement entitled “Implementation of the Commission's Decision.”
In the event the Agency provides Complainant with a lump sum back pay payment, the Agency
shall provide Complainant with the opportunity to establish her entitlement to payment related to
any tax consequences incurred.2
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must 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.

ATTORNEY'S FEES (H1016)

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 the date this decision was issued. 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 (K0617)

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

2 In the case of a lump sum back pay award, individuals are entitled to compensation for the
extra tax liability they are required to pay as a result of receiving a lump sum award, as opposed
to the actual amount they would have had to pay if they had received their pay over a period of
time, usually several years. Emiko S. v. Dept, of Transp., EEOC Appeal No. 0120161130 (Jul.
19, 2016). It is the receipt of the pay in one lump sum that causes the extra tax liability, not the
back pay award itself. Id. Complainant bears the burden to prove the amount to which she claims
entitlement. Id. citing Cottrell v. Dept, of Transp., EEOC Petition No. 04A30015 (Oct. 12, 2004).
See also e.g, Cecile S. v. U.S. Postal Serv., EEOC Petition No. 0420120013 (Nov. 4, 2015).
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action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

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 (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
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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

January 24, 2018
Date