05A61062
09-27-2006
Marie L. Wilson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Marie L. Wilson,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Request No. 05A61062
Appeal No. 01A61316
Hearing No. 160-2005-00370X
Agency No. 04-0064-SSA1
DENIAL
The agency timely requested reconsideration of the decision in Marie
L. Wilson v. Social Security Administration, EEOC Appeal No. 01A61316
(August 7, 2006). 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(b).
In requesting reconsideration, the agency contends that our previous
decision erred in awarding complainant $5,000.00 in non-pecuniary
compensatory damages because similar cases only awarded complainants
$500.00 to $1,000.00 in non-pecuniary compensatory damages and some of
complainant's mental anguish pre-existed the agency's discriminatory
actions. However, upon review, we find that the record supports the
conclusion that complainant's mental anguish was caused by the agency's
discriminatory actions. We further determine that the award of $5,000.00
in non-pecuniary compensatory damages was appropriate and supported
by substantial evidence. See Vitale v. Social Security Administration,
EEOC Appeal No. 01A4440 (February 7, 2005) ($5,000.00 in non-pecuniary
damages awarded where complainant suffered from severe emotional
distress, humiliation, hurt feelings, anxiety and mental suffering after
the agency's failure to provide reasonable accommodation); see also
Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June 27,
1996)($5,000.00.00 in non-pecuniary damages where complainant experienced
stress, skin rashes, withdrawal, and isolation); Tula v. Department
of the Navy, EEOC Appeal No. 01A13645 (August 30, 2002) ($5,000.00
based on complainant's testimony that she experienced depression,
anxiety attacks, withdrawal and humiliation); Spencer v. Department
of the Treasury, EEOC Appeal 07A10035 (May 6, 2003) ($5,000.00 awarded
for complainant's dejection, stress and emotional pain). This amount
meets the goals of not being motivated by bias or prejudice, not being
"monstrously excessive" standing alone, and being consistent with the
amounts awarded in similar cases.
Therefore, 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. 01A61316 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
Therefore, as set forth in the previous decision, to the extent that
it has not already done so, the agency is ORDERED to take the following
remedial action:
1. To pay to complainant the sum of $5,000.00 in compensatory
damages;
2. To pay to complainant the sum of $9.65 in costs;
3. To pay to complainant $385.00, plus interest to December
7, 2005;
4. To take corrective, curative and preventive action to ensure that
retaliation does not recur. This includes, but is not limited to,
20 hours of training for the relevant management officials, regarding
their responsibilities with respect to eliminating discrimination in the
federal workplace. The training must emphasize the agency's obligations
under Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., and in particular, the law against retaliation;
and
5. To consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the compliance officer. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides
not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s). .
POSTING ORDER
The agency is ordered to post at its Roslindale, Massachusetts field
office, 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 (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 (P0900)
This decision of the Commission is final, and there is no further
right of administrative appeal from the Commission's decision. 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.
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
_September 27, 2006____________
Date
1 We note that complainant's complaint is also alternatively identified
in the record as Agency No. 03-0160-SSA and Hearing No. 160-2004-00062X.
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05A61062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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