0120162569_0120171598
07-18-2017
Matilde M,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
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.
Appeal No. 0120162569 & 0120171598
Agency No. HQ-13-0339-SSA
HQ-16-0821-SSA
DECISION
The Commission accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 27, 2016 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Complainant filed a second appeal pursuant to the Agency's February 24, 2017 final decision dismissing her complaint filed on August 30, 2015, alleging discrimination in violation of Title VII and the Rehabilitation Act. We have consolidated the two related appeals for a single decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a former Information Technology Specialist at the Agency's Network Monitoring and Operations Branch facility in Baltimore, Maryland.
On June 6, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability when, on January 18, 2013, she was constructively discharged. She alleged that her supervisor had expected sexual favors from her and that all male co-workers made several "pro-male and anti-female" statements which cause her stress. Complainant also alleged that the Supervisor made it impossible for her to obtain a reasonable accommodation for her medical condition. The Supervisor reminded Complainant that he could fire her at any time and he alone made decisions about career advancement.
Following an investigation, the Agency issued a decision on July 24, 2015, finding that Complainant had proven she was subjected to harassment, denial of reasonable accommodation, and constructive discharge as alleged. In order to remedy her for the discrimination, the Agency issued an order post a notice regarding the finding of discrimination; to reinstate Complainant to a GS-12 level position elsewhere in the Agency within a reasonable distance from Complainant's residence and appropriate to her skills; to provide Complainant with back pay with interest from the date of termination to the date of reinstatement; to reimburse Complainant for all lost contributions to the Thrift Savings Plan with Agency matching funds; to pay Complainant annual and sick leave; to continue Complainant's health and life insurance payments; to expunge records reflecting negative performance or behavior on the part of Complainant; to conduct a supplemental investigation regarding compensatory damages; to provide training to management; and to pay Complainant's attorney's fees and costs.
On June 27, 2016, the Agency issued its decision regarding Complainant's entitlement to compensatory damages. The Agency awarded Complainant $150,000 in non-pecuniary damages and $19,240.83 in pecuniary damages.
Complainant then filed the first of the instant appeals, docketed as EEOC Appeal No. 0120162569. On appeal, Complainant indicated that she was not appealing the Agency's determination regarding compensatory damages, but rather the Agency's failure to provide her with back pay and to compensate her for the tax consequences she would incur based on the lump sum payment of back pay.
Subsequently, Complainant filed a new formal complaint on August 30, 2016, alleging discrimination based on reprisal (the initial EEO complaint) and disability when on, June 22, 2016, the Agency rescinded its offer to reinstate Complainant into an Information Specialist, GS-12, position. Complainant argued that, as remedy for the discriminatory harassment, denial of reasonable accommodation, and constructive discharge, the Agency was supposed to have reinstated her into an IT position by May 6, 2016. However, the Agency had not done so. Therefore, she filed a formal complaint to compel the Agency to comply with its final decision.
On February 24, 2017, the Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for alleging the same claim as one previously decided by the Agency. The Agency noted that the complaint raised by Complainant was addressed in its July 24, 2015, finding of discrimination. Further, Complainant had filed a "Petition for Enforcement" with the Commission on September 14, 2016.2 The Agency held that since the matter is the same issue raised in her new complaint, it should be dismissed.
Complainant filed appeal of the Agency's dismissal decision, docketed as EEOC Appeal No. 0120171596. On appeal, Complainant asserted that her complaint raised a "claim of breach" and that she sought enforcement of the Agency's July 2015 final decision.
Upon review of EEOC Appeal Nos 0120162569 & 0120171598, we find that Complainant alleged the same claim that the Agency has failed to provide full relief as ordered by the Agency in its final decision issued July 24, 2015. Therefore, we shall consolidate the appeals into a single decision.
ANALYSIS AND FINDINGS
Upon review of the record, the issue raised in both appeals concerns the Agency's failure to reinstate Complainant to a GS-12 position with back pay, as ordered in its July 24, 2015 decision. That decision determined that, following Complainant's reinstatement, the Agency would be required to provide Complainant with back pay, with interest; restoration of leave; continued payment of health and life insurance; other benefits including TSP; and any tax consequences based on a lump sum payment of back pay.
Despite these two appeals, the Agency has not provided the Commission with any evidence to show that it has reinstated Complainant in to a GS-12 position within her skills and commuting distance from Complainant's residence. Nor has the Agency provided any evidence to show that it has tried to comply with providing Complainant with back pay and other benefits. As such, we find that the Agency has not complied with providing Complainant with the remedies it ordered in its July 24, 2015 final decision.
Because the Agency has failed to present sufficient evidence showing that it has fully implemented all of the remedies imposed in the FAD, we find the Agency has not fully complied with the FAD, and REMAND the matter to the Agency for full compliance.
ORDER
Within thirty (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 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 the Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The 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 the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or 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.3
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 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.
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), 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 (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 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
July 18, 2017
__________________
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 Rather than a petition for enforcement, we note that Complainant had filed a third appeal which was docketed as EEOC Appeal No. 0120170509. A review of the appeal indicated that the only issue raised related to the Agency's final decision regarding fees and costs for Complainant's attorneys. Complainant later withdrew this appeal as the parties reached a settlement agreement dated June 2, 2017, which only addressed the issue of attorney fees and costs.
3 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).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162569
6
0120162569 & 0120171598