05a30191
04-21-2005
Doris L. Smith, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Doris L. Smith v. Social Security Administration
05A30191
04-21-05
.
Doris L. Smith,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Request No. 05A30191
Appeal No. 01A01479
Agency No. SSA-97-0043
Hearing No. 120-97-4762X
DENIAL
The Social Security Administration (agency) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission)
to reconsider the decision in Doris L. Smith v. Jo Anne B. Barnhart,
Commissioner, Social Security Administration, EEOC Appeal No. 01A01479
(September 30, 2002). 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).
Complainant filed a complaint in which she claimed that she was
discriminated against on the basis of race (black) when she learned on
August 23, 1996, that she would not be receiving a cash award. The agency
investigated the complaint and thereafter referred the matter to an
Administrative Judge (AJ), who held a hearing and issued a decision
finding discrimination and awarding relief. The agency declined to
implement the AJ's decision and filed an appeal thereon. The previous
decision held that the AJ's factual findings were supported by substantial
evidence in the record. It found that other award recipients' names
that were redacted from the investigative file were relevant because
those individuals were potential witnesses who might have verified whether
award recipients actually performed the work that the agency relied on to
justify the awards. The previous decision also found no error in the AJ's
decision to draw an adverse inference against the agency for providing
its hearing representative with an unsanitized investigative report while
only providing complainant with a sanitized version of the report, and
for not producing records corroborating the comparative's participation
in the activities cited by the agency as the justification for her award.
Finally, the previous decision found that the AJ's decision to draw an
adverse inference did not constitute an abuse of discretion.
In its request for reconsideration, the agency argues initially that,
in upholding the AJ's decision, the previous decision disregarded the
testimony of the agency's witnesses that the comparative did perform
duties not performed by complainant. To the contrary, the AJ did
consider the testimony of those witnesses and found it lacking in
credibility, since none of the witnesses was able to confirm that
the comparative performed the extra duties relied upon to justify
her award between October 1994 and September 1995, the time frame for
which the awards were considered. Moreover, the agency did not produce
recommendations, contemporaneously prepared meeting notes, or any other
documents corroborating that the comparative performed those duties
during the period in question.
Second, the agency argues that the redacted information from the
investigative file was not relevant to the case, as demonstrated by the
fact that neither complainant nor her representative ever requested any
information regarding other possible comparatives, either during the
investigation or through discovery. We disagree. EEO investigations
must include a thorough review of the circumstances under which the
alleged discrimination occurred, the treatment of members of the
complainant's group as compared with the treatment of other similarly
situated employees, and any policies or practices which may constitute
or appear to constitute discrimination, even though they have not been
expressly cited by the complainant. EEO Management Directive (MD)
110, p. 6-6 (November 9, 1999). The redacted information at issue
consisted of the names of all employees who received awards, including
the comparative that complainant identified in her complaint as an
award recipient, and was therefore material to the outcome of the case.
See Hart v. Department of Agriculture, EEOC Request No. 05930995 (June
16, 1994). The agency was under an obligation to disclose the identity
of these potential witnesses to complainant, regardless of whether or
not complainant requested that information.
Third, the agency argues that the AJ erred in relying on her order in a
previous case as notice of her intent to impose an adverse inference.
In a 1997 order pertaining to an unrelated case, the AJ directed the
agency to review its procedures regarding the redacting and preservation
of records because the agency had given an unsanitized investigative
report to its representative but not to the complainant. During the
hearing on the instant case, the agency's representative was given an
unsanitized copy of the investigative report that complainant did not
have, in contradiction of its own policy that both parties be given
sanitized copies of the report. The AJ warned the agency that it had
violated her order in the previous case, and notified the parties of a
possible sanction in the form of an adverse inference. Hearing Transcript
46-47. Approximately one month after the hearing, the AJ issued a show
cause order as to why the agency should not be sanctioned, and, after
reviewing the parties' responses thereto, drew the adverse inference
against the agency. Thus, the AJ did not, as the agency contends,
rely on the previous order as notice of her intent to draw an adverse
inference. Rather, the AJ merely cited her previous order in the notice
that she issued at the hearing, and gave the agency adequate opportunity
to respond to the show cause order that she issued after the hearing.
See MD-110, at pp. 7-7 - 7-8, n.4.
Finally, the agency argues that the previous decision mistakenly
supported the AJ's reliance on flawed statistics to bolster her finding
in complainant's favor. This contention is misplaced. The AJ's drawing
of the adverse inference in this case equates to a factual finding that
the contributions to the organization's performance made by employees
who received awards were no different than the contributions made by
complainant. See 29 C.F.R. � 1614.109(f)(3). Complainant is therefore
presumed to have contributed as much as any other employee who received
an award. Thus, even if the statistical evidence in question supported
the agency's position, it would not undermine or contradict the previous
decision's determination that the AJ's factual findings are supported
by the substantial evidence of record.
After reconsidering 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. 01A01479 remains
the Commission's final decision. The agency is directed to implement
the Commission's order in EEOC Appeal No. 01A01479, as modified below.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (C0900)
The agency is ordered to take the following remedial action:
within sixty days (60) calendar days of the date that the agency receives
this decision, the agency shall pay complainant the amount of $1,660,
plus interest since August 1996; and
within sixty (60) calendar days of the date that the agency receives
this decision, the agency shall update complainant's personnel records
to reflect the fact that she received a cash award in the amount of
$1,660 for her performance from September through December 1995.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Office of International Operations,
Director's Office, Baltimore, Maryland, 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.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
___04-21-05_______________
Date