0520160098
03-09-2016
Kerrie F.,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
Kerrie F.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 0520160098
Appeal No. 0720140026
Hearing No. 530-2007-00041X
Agency No. PHI-06-1988-SSA
DISMISSAL OF REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0720140026 (October 29, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to 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(c).
In EEOC Appeal No. 0720140026, the Commission upheld the finding of discrimination by an Equal Employment Opportunity Commission Administrative Judge (AJ1). AJ1 determined that the Agency subjected Complainant to discriminatory harassment based on her prior EEO activity pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The issue of damages was addressed by a second EEOC Administrative Judge (AJ2). AJ2 awarded Complainant $ 15,000 in non-pecuniary damages, $ 404.88 in pecuniary damages, $ 348,814.78 in fees for her attorney and $ 36,711.52 in costs. The previous decision affirmed the finding of discrimination by AJ1 and the award of remedies issued by AJ2. The Commission ordered the Agency to take corrective action based on the finding of discrimination.
The previous decision also noted that Complainant had alleged in her appeal that she had filed a petition for review with the Commission following a decision by the Merit Systems Protection Board (MSPB) dated May 11, 2009. The issue before the MSPB was an allegation of discrimination in connection with her removal from the Agency effective October 4, 2006. In EEOC Appeal No. 0720140026, it was determined that the Commission would not address Complainant's request to review this claim nor any remedies awarded related to the removal action.
In the instant request for reconsideration, Complainant asked that the Commission reverse its decision to deny review of her petition following the MSPB decision regarding the removal action. Therefore, this is the only issue before the Commission in the instant request for reconsideration. The Agency asked that the Commission reject Complainant's request. Further the Agency noted that Complainant had filed a civil action regarding her claim of discrimination as related to the removal action. Therefore, the Agency argued that the matter should be dismissed.
The Commission notes that on January 28, 2016, Complainant filed a civil action in the U.S. District Court for the District of Maryland. A review of the complaint filed with the District Court shows that Complainant has alleged that she was subjected to discrimination when she was removed from her position with the Agency effective October 4, 2006. We note that she did not raise the other claims of discrimination which were the subject of EEOC Appeal No. 0720140026.
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). Therefore, we determine that Complainant has filed a civil action regarding the removal action.
CONCLUSION
Accordingly, Complainant's request for reconsideration is DISMISSED. See 29 C.F.R. � 1614.409. Because the findings of the Commission's decision in EEOC Appeal No. 0720140026 still stand, we shall reissue our prior decision's orders. Therefore, we REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial actions:
1. Within 45 calendar days after this decision becomes final, the Agency shall make payment to the law firm which represented Complainant in this case in the following amounts:
a. $15,000 in non-pecuniary damages for Complainant.
b. $404.88 in pecuniary damages for Complainant.
c. $348,814.78 in attorney fees.
d. $36,711.52 in costs.
2. The Agency shall expunge all documents related to the PAP and decision to place Complainant on the PEP form Complainant's Official Personnel File and SF-7B Extension file.2
3. The Agency shall provide training to S1 and S2 on how to recognize and prevent reprisal discrimination for prior EEO activity.
4. The Agency shall consider disciplining S1 and S2 for their discriminatory conduct.
The Agency shall complete item 2 above within 90 calendar days after this decision becomes final. It shall complete items 3 and 4 above within six months after this decision becomes final.
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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Jenkintown District Office and Philadelphia Northeast Field Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (Q0610)
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 (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
March 9, 2016
__________________
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 Agency is not required to expunge these documents from its litigation files because, for example, litigation on this and the mixed case may continue.
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