0120152297_0420150014
04-07-2016
Beatrice B.,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
Beatrice B.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120152297
04201500142
Agency No. CHI090679SSA
DECISION
On June 12, 2015, Complainant filed an appeal from the Agency's May 21, 2015, final order concerning the damages awarded for her equal employment opportunity (EEO) complaint finding employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant is entitled to additional pecuniary compensatory damages for her student loan payment increases and; (2) whether Complainant is entitled to additional attorney's fees and costs.
BACKGROUND
On July 8, 2007, Complainant was hired as a Claims Authorizer under the two-year Federal Career Internship Program (FCIP) at the Agency's Great Lakes Program Service Center in Chicago, Illinois. In May 2008, Complainant requested a reasonable accommodation and on May 29, 2008, an Agency Equal Opportunity Manager informed Complainant that her medical documentation did not establish that she was an individual with a disability and that the Agency was not obligated to accommodate her. The Agency informed Complainant that she could submit additional medical information and if the decision was not reversed, she could request an independent review or file an EEO complaint. Complainant did not continue to pursue the matter at the time.
On March 12, 2009, Complainant's supervisor (S1) informed Complainant that her performance was unsatisfactory and that she would be placed on a Performance Improvement Memorandum (PIM). He also warned Complainant that if her performance did not improve, she would not be converted to a permanent position at the end of her FCIP period. Around the same time, at Complainant's request, the Agency moved Complainant to a quieter workspace; provided her with an ergonomic keyboard and mouse and; gave Complainant a new mentor. On April 27, 2009, S1 issued Complainant the PIM, which set out a written formal plan to improve her performance.
On May 19, 2009, Complainant submitted another request for a reasonable accommodation for the following:
1. Reduction in the daily number of cases processed from 8 to 6;
2. An extension in the time to meet her quantity requirement;
3. If a reduction in production requirement cannot be provided, an additional nine months from July 9, 2009, to meet the requirement of processing 8 cases;
4. Require that management place a greater importance on quality;
5. Allow for reassignment during the training period;
6. Allow Complainant one hour each day to make notes, organize her files and make lists, excluding this hour when calculating the number of cases she needs to process;
7. A second flat panel monitor and;
8. Allow Complainant to sit in a corner or cubicle with high walls.
In support of her request, Complainant provided the same medical documentation she provided for her May 2008 request and an additional medical note. An Agency doctor (DR) informed an EEO Specialist in Chicago that he considered Complainant to be an individual with a disability under the ADA Amendments Act of 2008, which became effective January 1, 2009. However, DR noted that Complainant may not be able to meet the requirements of the position and therefore, may not be qualified.
On June 16, 2009, Complainant met with S1 to discuss her requested accommodations. S1 informed Complainant that he would grant her the time she requested to organize her notes and files. On June 29, 2009, S1 informed Complainant that she had failed to perform a critical element in her PIM and on June 30, 2009, S1 gave Complainant an unsatisfactory performance rating. On July 1, 2009, the Agency informed Complainant that her FCIP appointment would expire on July 7, 2009, and that she would not be converted to a career-conditional appointment.
Complainant initiated EEO counseling and filed her formal complaint on September 3, 2009. She alleged that she was discriminated against on the bases of age (41), national origin (Hispanic) and disability (ADHD, bi-polar disorder, depression and Generalized Anxiety Disorder), when she was continuously denied a reasonable accommodation and when on July 7, 2009, she was removed from the Agency. Complainant timely requested a hearing, which was conducted on December 16-17, 2010, and February 8, 2011. On March 20, 2012, the EEOC Administrative Judge (AJ) issued his decision finding that the Agency discriminated against Complainant based on her disability when it failed to provide her with a reasonable accommodation and instead removed her, in violation of the Rehabilitation Act. However, the AJ found that Complainant was not able to show that she was discriminated against based on age and national origin.
In regards to Complainant's disability claim, the AJ found that even though Complainant had requested reasonable accommodations twice, he found that the Agency had not engaged in a true interactive process. Specifically the AJ found that after Complainant's second request, S1 only met with Complainant once to discuss her request for accommodations and that only thirteen days after that meeting, S1 informed her that her performance was not meeting expectations. Then only two days later, S1 informed Complainant that she would not be retained and converted to a career conditional employee.
The AJ noted that while other Agency officials met to discuss the possibility of extending Complainant's FCIP period; adjusting her performance standards or; reassigning her, the Agency decided that extending her FCIP period would be a lowering of performance standards. However, the AJ found that moving the FCIP deadline or temporarily modifying production progression was not a lowering of standards or outside of EEOC guidelines. The AJ further found that the Agency held onto the artificial barrier of the two-year FCIP timeframe without showing undue burden, despite having the ability to extend this timeframe on its own or requesting the Office of Personnel Management for permission for an additional extension. The AJ concluded that the Agency's failure to attempt to accommodate Complainant was unlawful discrimination.
The AJ ordered the following remedial actions:
1. Reinstate Complainant with back pay, allowances and differentials that she would have received had she not been terminated, deducting any salary, wages, or unemployment compensation earned. If Complainant is eventually converted to a fulltime employee, the Agency will then make contributions to the Thrift Savings Plan, based on her salary at the time of her 2009 termination, with applicable interest until the point of her reinstatement. Additionally, the Agency will add the period from Complainant's 2009 termination until her reinstatement to her eligible service date for leave and retirement purposes.
2. Pay attorney's fee in the amount of $62,500 and reasonable costs in the amount of $3,250.
3. Pay Complainant's increase in her student loan principal.
4. Pay Complainant's difference paid for health and life insurance.
5. Pay Complainant $50,000 in non-pecuniary compensatory damages.
In late January 2015, the Agency paid Complainant $50,000 for non-pecuniary compensatory damages and $62,500 in attorney's fees and $875.77 in costs for services through February 7, 2011. On April 30, 2012, the Agency issued its Notice of Final Action rejecting the AJ's findings and remedial award and filed an appeal with the Commission. On November 26, 2014, the Commission issued its decision reversing the Agency's final action and affirming the AJ's decision.3 The Commission remanded the matter for further processing and ordered the Agency to implement the remedial actions. In addition to those listed above, the Agency was also ordered to provide eight hours of EEO training and to consider discipline for the responsible management officials.
On May 21, 2015, the Agency issued a final decision (FAD) regarding Complainant's compensatory damages and a supplemental fee petition for attorney's fees and costs. The Agency decided to provide Complainant $1,821.26 for non-pecuniary compensatory damages related to Complainant's health insurance premiums. The Agency denied a remedy for payment for medical expenses because the AJ and the Commission specified that the Agency was to pay "the difference paid for health and life insurance." Based on Complainant's submissions, the Agency concluded that $1,826.61 was the appropriate amount in damages for her costs for health insurance premiums. Complainant did not provide any evidence related to life insurance premiums and the Agency did not provide any amount in damages.
In regards to Complainant's student loans, the Agency determined that her principal was not affected by her termination in July 2009. Specifically, the Agency found that Complainant's student loan balance remained at $105,458.97 from June 30, 2009 through November 13, 2014. The Agency therefore found that Complainant had not provided evidence that her student loan balance was accumulating or that her termination had any effect on the principal of her student loan and decided not to provide Complainant any non-pecuniary damages as it relates to her student loans. As a final matter, the Agency decided to provide Complainant with $29,910 in attorney's fees and $875.77 in costs, as requested in her Fee Petition.
Complainant then filed the instant appeal and filed a Brief in Support of Appeal of a Portion of the Agency's FAD on July 9, 2015. The Agency filed a response on August 11, 2015. On August 19, 2015, Complainant filed a Motion for Leave to Correct or Clarify Alleged, Implied or False Facts in Agency's Response.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency erred when: (1) calculating her deductions of outside earnings and unemployment compensation and; (2) denying her pecuniary compensatory damages for the interest on her student loans. Complainant is also requesting additional attorney's fees and costs related to the additional work on her case.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
As an initial matter, we note that the Agency's FAD did not address Complainant's back-pay award. In the Agency's response to Complainant's appeal, it notes that Complainant's issues regarding her back-pay have been resolved. In her August 19, 2015 submission, Complainant confirms that she has "received the proper back pay amount." Accordingly, we will not address this issue in this decision.
Student Loans
On appeal, Complainant alleges that she is entitled to pecuniary compensatory damages for her student loans because her interest payment increased and accumulated, despite the fact that her principal remained the same. Complainant is requesting an additional $17,530.27 in compensatory damages for her student loan payments.
The Agency argues that the AJ awarded Complainant damages for "Increase in Principle [sic] for [Complainant's] Student Loan," which the Commission affirmed following the Agency's appeal. The Agency notes that Complainant did not file any previous appeal and argues that if Complainant believed that she is entitled to additional compensatory damages for the interest on her student loans, she should have appealed either the AJ's decision or the Commission's decision because the Commission cannot address an issue raised for the first time on appeal.
We find that Complainant is not entitled to additional pecuniary compensatory damages for the interest of her student loans. We agree with the Agency that Complainant should have filed an appeal of the AJ's decision or the Commission's earlier decision when this award was ordered but she did not do so. Moreover, in awarding damages, the AJ specified that Complainant receive damages for any increase in only the principal in her student loan, and Complainant has not argued or shown that the AJ abused his discretion. Accordingly, we affirm the Agency's decision not to award Complainant any amount for damages related to her student loans because there was no increase in the principal.
Attorney's Fees and Costs
In the FAD, the Agency awarded Complainant an additional $29,910 in attorney's fees and $875.77 in costs, the full amount requested in her Fee Petition. These fees and costs were associated with services provided through December 20, 2014. This was Complainant's second award of attorney's fees and costs for her case. On appeal, Complainant is requesting an additional $15,450.70 in attorney's fees and $902.17 in costs for work Complainant's attorney performed on the issues related to her back-pay and student loans from December 23, 2014, through July 9, 2015, including drafting a Petition for Enforcement, performing legal research and filing this appeal.
The record contains an affidavit dated July 9, 2015, from Complainant's attorney and a document outlining the details for his supplemental fees and costs from January 23, 2015, through July 9, 2015. However, it is not clear if Complainant sent a Fee Petition to the Agency. In the Agency's response to Complainant's appeal, it does not discuss having received a new Fee Petition from Complainant. Instead, the Agency argues that Complainant should not receive additional attorney's fees and costs because there was no reason for Complainant's attorney to do additional work with respect to the back-pay issues and that there was no reason to file an appeal because the Agency had already worked with Complainant to resolve the error in the back-pay calculations.
Attorney's fees may not be recovered for work on unsuccessful claims. See Hensley v. Eckerhart, 461 U.S. 424, at 434-35. As discussed above, Complainant has not prevailed on her claim for additional compensatory damages for her student loans, beyond what was already awarded to her. Furthermore, we note that Complainant did not file a separate Petition for Enforcement and this appeal is only from the Agency's May 21, 2015, FAD.4 Complainant's primary issue in her brief concerns her allegation of noncompliance involving back-pay, which was resolved without her attorney's involvement. While we find that it was reasonable for Complainant to have filed her appeal on June 12, 2015, to preserve her appeal rights, we note that by the time she filed her brief, on July 9, 2015, she had already received the appropriate compensation.5
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision to not provide Complainant any non-pecuniary damages as it relates to her student loans because her principal did not increase. Accordingly, we find no entitlement to additional attorney's fees and costs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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. 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
__4/7/16________________
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 Commission administratively closes the record listed under docket number EEOC Petition No. 0420150014 because it is a duplicate of the instant appeal was incorrectly docketed as a separate matter. Although the Commission is closing EEOC Petition No. 0420150014, we are addressing Complainant's concerns in the instant decision under EEOC Appeal No. 0120152297. All future correspondence regarding this matter should reference EEOC Appeal No. 0120152297.
3 This decision is EEOC Appeal Number 0720120034.
4 In docketing EEOC Petition No. 0420150014, the Commission treated Complainant's submission as a Petition for Enforcement but the document clearly indicates that Complainant was filing an appeal for the FAD and has not submitted a separate Petition for Enforcement.
5 In Complainant's appeal brief, she also argues that the Agency owed her an additional $47,490.68 in back-pay because the Agency did not calculate the correct amounts of her outside earnings and unemployment compensation benefits. However, we note that Complainant's calculations are erroneous because Complainant also did not properly deduct her outside earnings and unemployment compensation benefits. While the Agency initially made errors in the figures they used, we find that Complainant erred in not deducting any of the outside earnings and unemployment compensation benefits in coming up with the $47,490.68 figure. When making the correct calculations, we determine that the Agency properly complied with the back-pay order after they transmitted the additional funds in June 2015, and that Complainant's appeal was based on her own erroneous calculations.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152297
8
0120152297
0420150014