05991139
12-22-2000
Brenda McLeod, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Brenda McLeod v. Social Security Administration
05991139
12-22-00
.
Brenda McLeod,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Request No. 05991139
Appeal No. 01963810
Agency Nos. 64994, 76094
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Brenda
McLeod v. Kenneth S. Apfel, Commissioner, Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999).<1> EEOC Regulations provide
that the Commission may, in its discretion, reconsider any previous
Commission decision 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(b).
After a review of the agency's request for reconsideration, 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(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01963810 remains the Commission's final decision. The agency
shall comply with the ORDER in the prior decision, as restated below.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
The agency is ORDERED to take the following actions:
1. The agency shall take appropriate preventative steps to ensure that no
employee is subjected to sexual harassment and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.
2. The agency shall determine whether complainant is entitled to the
reinstatement of any leave used as a result of the harassment she
experienced between December 1992 and March 16, 1994.
3. The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages for the harassment
she experienced between December 1992 and March 16, 1994. The agency
shall allow complainant to present evidence in support of her compensatory
damages claim.<0> Complainant shall cooperate with the agency in
this regard. Thereafter, the agency shall issue a final decision. 29
C.F.R. � 1614.110. The supplemental investigation and issuance of the
final decision must be completed within sixty (60) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
4. In the event that the PETE remains in the agency's employ, he shall
not be permitted to work in the same module as complainant.
5. The agency shall provide remedial training for the PETE and all
managers and supervisors located at the SEPSC to ensure that acts of
sexual harassment do not recur, that no retaliatory acts are taken
against any employee who opposes unlawful discrimination, including
sexual harassment, and that persons reporting incidents of alleged sexual
harassment are treated in an appropriate manner.
POSTING ORDER (G0900)
The agency is ordered to post at its Southeastern Program Service
Center, Birmingham, Alabama, facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/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 this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing 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 (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
__12-22-00________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Social Security Administration, Southeastern Program Service Center,
Birmingham, Alabama, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Social Security Administration, Southeastern Program Service Center,
Birmingham, Alabama, has been found to have discriminated against an
employee by not responding appropriately to her complaint that she was
being sexually harassed. The agency has been ordered to restore any
leave taken by the employee as a result of the harassment, ensure that the
employee and the harasser no longer work in the same area, and determine
whether the employee is entitled to an award of compensatory damages.
The Social Security Administration, Southeastern Program Service Center,
Birmingham, Alabama, will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
The Social Security Administration, Southeastern Program Service Center,
Birmingham, Alabama, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
0
2 In order to assess the claim, the agency shall request from
complainant evidence of and testimony establishing any pecuniary and
non-pecuniary injury suffered and its link to the agency's retaliatory
actions. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993); Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994).