[Redacted], Elliot J., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2019000550 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliot J.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Request No. 2020002866 Appeal No. 2019000550 Agency No. HQ-1505-52-SSA DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000550 (January 28, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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). At the time of events giving rise to this complaint, Complainant worked as a GS-13 Social Insurance Specialist at the Agency’s Office of Retirement and Disability Policy in Baltimore, Maryland. On July 1, 2015, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (Caucasian), national origin (Hispanic), sex (male), age (born in 1956), and in reprisal for prior protected EEO activity when, on March 17, 2015, it failed to select him for the position of Supervisory Social Insurance Specialist, GS-14. 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. 2020002866 2 Following an EEO investigation, on March 16, 2016, the Agency issued a final decision finding no discrimination. Complainant filed an appeal with this Commission, which was docketed as Elliot J. v. Social Security Administration, EEOC Appeal No. 0120161848. In a decision dated February 22, 2018, EEOC reversed the Agency and found that Complainant proved that the Agency failed to select him for the supervisory position because of his race, national origin, sex, and age. EEOC ordered the Agency to: offer Complainant the GS-14 Supervisory Social Insurance Specialist position; pay him appropriate back pay and benefits with interest; provide eight hours of EEO training to the responsible management official and consider taking disciplinary action against her; post a notice of the discrimination finding; and to conduct a supplemental investigation regarding compensatory damages and issue a final decision addressing Complainant’s entitlement to such damages. Additionally, the Commission ordered the Agency to pay Complainant’s attorney’s fees incurred in the processing of the complaint. Following a supplemental investigation regarding Complainant’s entitlement to compensatory damages, in a decision dated August 17, 2018, the Agency denied Complainant’s request for past medical expenses; awarded Complainant $625 in job search/training expenses; denied Complainant’s request for attorney’s fees; and awarded Complainant $10,000 in nonpecuniary compensatory damages. Complainant filed an appeal with this Commission which was identified as Elliot J. v. Social Security Administration, EEOC Appeal No. 2019000550. On appeal, Complainant asserted that the Agency “ignored” substantial medical evidence establishing his entitlement to $3,628.69 in out-of-pocket medical expenses caused by the Agency’s discrimination. Further, Complainant contended that the Agency’s award of $10,000 in nonpecuniary compensatory damages did not adequately compensate him for the emotional distress he endured, but he did not specify the amount of nonpecuniary compensatory damages he should receive. Complainant also contended that he should receive $75,381 for lost salary because of his discriminatory non-selection. Complainant also maintained that the Agency improperly denied his request for attorney’s fees and requested $8,832.93 in such fees. There was no record of an Agency brief submitted in response to the appeal. The decision for EEOC Appeal No. 2019000550 addressed compensatory damages solely. The Commission concurred with the Agency’s award of $625 in pecuniary compensatory damages and increased the nonpecuniary compensatory damages award from $10,000 to $50,000. The Commission stated that Complainant submitted affidavits from himself and a romantic partner to support his nonpecuniary compensatory damages claim. Complainant stated that because of the discrimination, his quality of life was diminished, and he experienced anxiety, depression, insomnia, weight gain/loss, inability to concentrate, cardiac issues, hypertension, panic attacks, and mental anguish so severe he had to be taken off an aircraft for medical reasons. Complainant also stated that he had a hard time getting out of the bed in the morning, lacked motivation to go to work, and had difficulty showering, eating breakfast, performing other daily routines. Complainant also stated that his music performance in a band had declined. Complainant’s “Significant Other” provided an affidavit, which corroborated Complainant’s assertions. 2020002866 3 The Commission found $50,000 in nonpecuniary compensatory damages was not monstrously excessive and consistent with the amounts awarded in similar recent cases. The Commission cited Devin H. v. Dep’t of Homeland Security, EEOC Appeal No. Appeal No. 0120171868 (March 21, 2019); Harvey D. v. Dep't of State, EEOC Appeal No. 0120171079 (August 23, 2018); and Complainant v. Dep't of Justice, EEOC Appeal No. 0120123467 (April 3, 2015). The instant request for reconsideration from the Agency followed. In its request, the Agency stated that the Commission erred when it found that $10,000 was inconsistent with similar awards. The Agency stated that it conducted a thorough investigation regarding compensatory damages and awarded damages based on Complainant’s 2015 non-selection. The Agency stated that Complainant alleged, but failed to show, nonpecuniary damages for other Agency actions were warranted. The Agency stated that it filed an opposing appellate brief in the original appeal but it was not uploaded to the EEOC database for “reasons unknown to the Agency.” The Agency asked that the appellate brief, now submitted, be considered here.2 After a careful review of the record, the Agency’s request for reconsideration is denied. On appeal, the Commission thoroughly considered the Agency’s contentions for awarding $10,000 in nonpecuniary compensatory damages and found $50,000 more appropriate based on caselaw. We note that “[a] request for reconsideration is not a second appeal to the Commission.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, § VILA. (November 9, 1999). 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. 2019000550 remains the Commission’s final decision. There is no further right of administrative appeal on the decision of the Commission on this request. We REMAND this matter to the Agency for further processing consistent with this decision and the ORDER below. ORDER To the extent that the Agency has not already done so, within sixty (60) calendar days of the date this decision is issued, the Agency shall pay Complainant $50,625 in compensatory damages. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 2 We note that the Agency’s appellate brief was consistent with its compensatory damages final decision and other documents in the appellate record during the original appeal. Since these documents were available and considered in Appeal No. 2019000550, the Agency’s brief, had we received it, would not have added anything new. 2020002866 4 Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) 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. 2020002866 5 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 January 25, 2021 Date