Damarius Ortiz, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 4, 2009
0120062670 (E.E.O.C. Feb. 4, 2009)

0120062670

02-04-2009

Damarius Ortiz, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Damarius Ortiz,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01200626701

Hearing No. 170-97-8446X

Agency No. SSA 97-0100

DECISION

The record indicates that complainant, a former GS-4 Clerk Typist

Stay-In-School (SIS) employee, assigned to the agency's Jersey City,

New Jersey district office, filed her complaint on November 25, 1996,

alleging discrimination based on disability (diabetes) and in reprisal for

prior EEO activity when she was terminated from her position effective

August 30, 1996. The record also indicates that as a SIS participant,

complainant worked for the agency full time during the summer months,

and part time during the school year while also maintaining a full time

course schedule. Prior to the alleged incident, in May 1996, complainant

was hospitalized for 6 days due to the effects of her diabetes. Based on

this hospitalization, complainant was not able to complete all of her

final exams for the spring semester and incurred 3 incomplete grades

which caused the termination at issue.

After a hearing, an agency's October 23, 1998 decision, an appeal, EEOC

Appeal No. 01990911 (January 19, 2001), and reconsideration request,

Request No. 05A10357 (May 3, 2002), the Commission previously found that

complainant failed to establish disparate treatment based on disability

or retaliatory motive based on her prior EEO activity, but that she

established the agency failed to reasonably accommodate her disability.

Accordingly, the agency was ordered to take remedial actions which

included purging agency records of all references to the termination of

complainant's employment, grant her back pay including all pay raises and

costs of living increases from August 30, 1996, until May 11, 1998, when

she should have graduated and become ineligible for employment as a SIS.

On appeal, complainant does not dispute the agency's implementation of

the foregoing orders. The Commission previously also remanded to the

Hearings Unit the issue of compensatory damages, which is the sole issue

at this time.

Accordingly, on November 9, 2005, an EEOC Administrative Judge (AJ)

held a hearing on the issue of compensatory damages. On December 23,

2005, the AJ issued her decision finding that complainant failed to prove

that she was entitled to any compensatory damages. On February 22, 2006,

the agency issued its final order fully implementing the AJ's decision.

Complainant appeals from this decision on March 21, 2006.2

Pursuant to Section 102(a) of the Civil Rights Act of 1991, a

complainant who establishes his or her claim of unlawful discrimination

may receive, in addition to equitable remedies, compensatory damages

for past and future pecuniary losses (i.e., out of pocket expenses)

and non-pecuniary losses (i.e., pain and suffering, mental anguish).

42 U.S.C. � 1981a(b)(3). For an employer with more than 500 employees,

such as this agency, the limit of liability for future pecuniary and

non-pecuniary damages is $300,000. Id.

The particulars of what relief may be awarded, and what proof is

necessary to obtain that relief, are set forth in detail in EEOC

Notice No. N-915.002, Compensatory and Punitive Damages Available Under

Section 102 of the Civil Rights Act of 1991, (July 14, 1992) (Guidance).

Briefly stated, the complainant must submit evidence to show that the

agency's discriminatory conduct directly or proximately caused the losses

for which damages are sought. Id. at 11-12, 14; Rivera v. Department of

the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded

should reflect the extent to which the agency's discriminatory action

directly or proximately caused harm to the complainant and the extent

to which other factors may have played a part. Guidance, at 11-12.

The amount of non-pecuniary damages should also reflect the nature and

severity of the harm to the complainant, and the duration or expected

duration of the harm. Id. at 14.

Complainant claimed that as a result of her August 1996 termination,

she was entitled to the full amount of her student loan and interest

($46,228.00), personal loans (over $10,000.00), her back rent ($7,371.00),

and moving/furniture storage expenses ($12,250.00).

With regard to her student loan, the AJ stated that complainant incurred

the debt well before her termination from the agency, or at least starting

in 1995. The AJ added that complainant had been in school approximately

2 years prior to her employment with the agency. The AJ also noted that

by the spring of 1998, complainant had already earned 136 credits which

were normally a sufficient amount of credits to graduate, but she had

changed her major and lacked adequate credits in her major. Thus, the AJ

found and we agree that complainant failed to establish proximate cause.

With regard to her personal loans, the AJ found and we agree that

complainant failed to provide any documentation, other than her own

assertions, in support of this debt and thus failed to establish a nexus.

With regard to the back rent, the AJ noted that complainant commenced her

rental agreement with her landlord well after her August 1996 termination

from the agency as she acquired possession of her apartment on May

1, 1997. The AJ found and we agree that complainant's termination was

not the proximate cause of her subsequent eviction from the apartment

in April 1998.

With regard to her moving and storage expenses due to the eviction from

her apartment, the AJ also found that complainant began utilizing storage

facilities in January 2000, and thus failed to establish a nexus.

With regard to her medical bills, the AJ noted that complainant claimed

that from 1998, to the present, she had to visit doctors but "Charity

Care" and Medicaid took care of many of her medical bills. The AJ stated

that although complainant submitted a few medical bills, she failed to

make a connection between the termination and the harm. The AJ noted

that complainant indicated that she never received psychiatric care.

Based on the foregoing, the AJ determined that notwithstanding the

agency's failure to establish good faith in reasonably accommodating

complainant, complainant failed to establish the requisite proximate

cause between the agency's termination of her employment as a SIS and

her alleged harm. Thus, the AJ found and we agree that complainant was

not entitled to receive compensatory damages. Complainant has not argued

on appeal that she is due an award for non-pecuniary damages.

Accordingly, the agency's final order on compensatory damages is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

2/4/09

__________________

Date

1This case has been redesignated with the above-referenced appeal number.

2 We note that although the agency submitted its appeal brief on April

13, 2006, it did not submit the complaint file until January 13, 2009.

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0120062670

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013