01a46034
04-19-2005
Shirley Staib, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Shirley Staib v. Social Security Administration
01A46034
April 19, 2005
.
Shirley Staib,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A46034
Agency No. 010065SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her request for compensatory damages. For the following
reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that the Commission issued a decision, EEOC Appeal
No. 01A22011, Staib v. Social Security Administration (September 26,
2003), finding that complainant was subjected to discrimination,
and remanding the issue of compensatory damages to the agency for a
supplemental investigation, and final decision, concerning complainant's
entitlement to compensatory damages. On August 27, 2004, the agency
issued a final decision. In its FAD, the agency found that complainant
failed to provide evidence in support of her claim for compensatory
damages.
On appeal, complainant, through her representative, contends that her
representative was not properly notified that a supplemental investigation
concerning compensatory damages began, even though complainant notified
the agency that she had a new representative (R2). R2 states that
she finds it difficult to understand how the agency knew to send her
a letter dated August 27, 2004, notifying her that the supplemental
investigation was over, if the agency had indeed not been notified that
R2 was complainant's representative. In addition, complainant contends
that the letter, dated January 16, 2004, notifying complainant of the
supplemental investigation and requesting documentation, was not signed
by any agency official.<1> Complainant additionally contends that she
has suffered harm due to the agency's discrimination, and presents an
itemized account of the damages allegedly suffered, leave slips, checks,
and letters from doctors in support of her claim.
In its reply to the appeal, the agency contends that complainant's
arguments are without merit. The agency contends that in compliance
with the Commission's order, on January 16, 2004, complainant was sent
a letter by certified mail requesting within 60 days, documentation in
support of her claim for compensatory damages. The agency contends that
complainant failed to provide such documentation. Although complainant
contends that her representative was not sent a copy of the letter,
the agency states that complainant's representative of record (R1)
was sent a copy. The agency further disputes complainant's contention
that she informed the agency by letter dated October 29, 2003, that
she had a different representative (R2). Specifically, the agency
notes that although the correspondence is dated October 29, 2003, the
attached certificate of service states that it was mailed on September
10, 2003. The agency argues that complainant could not have mailed the
correspondence on September 10 when it was not drafted until October 29.
The agency argues that moreover, since the January 16, 2004 letter was
clearly addressed to complainant and R1, complainant had full knowledge
that R2 was not provided a copy of the letter. The agency argues that
assuming R2 was complainant's representative, complainant should still
not be excused for failing to share the letter with R2. The agency
further notes that even after R2 became aware that the agency had sent
the January 16, 2004 letter to complainant, she still failed to provide
the requested documentation.
In addition, the agency contends that complainant has failed to show
that she was entitled to compensatory damages. In so finding, the agency
contends that none of the physicians who proffered statements attributed
their assessment of complainant's condition to the agency's action.
Additionally, the agency notes that complainant submitted copies of
various requests for leave, however, the requests do not show that
complainant was required to take leave because of the agency's actions.
In the instant case, we find that complainant failed to timely provide
documentation in support of her claim for compensatory damages. Even
assuming the agency was at fault for not properly notifying complainant's
new representative of the beginning of the supplemental investigation,
complainant does not contend that she never received the letter herself.
As the letter was addressed to complainant's former representative,
complainant was on notice that her new representative had likely not
been sent a copy of the letter. Complainant must be held responsible for
failing to forward the letter to the proper representative. In sum, we
find that even assuming the agency failed to properly notify complainant's
representative of the beginning of the supplemental investigation,
this oversight cannot absolve complainant of her responsibility to
provide documentation in support of her claim for damages, pursuant to
the Commission's Order.<2> Accordingly, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
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 (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
April 19, 2005
__________________
Date
1 In the FAD, the agency admits that the January 16, 2004 letter was
not signed, but contends that this was a clerical oversight that does
not constitute harmful error.
2 We additionally note that we find that the agency's failure to sign
the January 16, 2004 letter constituted harmless error.