01983016
04-20-1999
Albert W. Morton, Appellant, V. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency,
Albert W. Morton v. Social Security Administration
01983016
April 20, 1999
Albert W. Morton, )
Appellant, )
)
V. ) Appeal No. 01983016
) Agency No. 98-0129-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency, )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for raising the same matter raised under a negotiated grievance
procedure, for failure to state a claim, and for failure to comply with
applicable time limits.
BACKGROUND
Appellant initiated contact with an EEO counselor on August 14, 1997,
and filed a formal complaint of discrimination on November 5, 1997,
based on race (Black), color (Black) and sex (male) alleging he was
subjected to harassment, and denied due administrative process, and that
his supervisor abused his authority, and aroused appellant's co-workers
against him when:
he received a Proposal to Suspend on August 14, 1997, for failure to
follow an August 12, 1997, directive to either return a refrigerator
purchased by appellant and his co-workers to the office from where he
took it, or deliver it to where the majority of the co-workers chose
for its disposition;
on August 11, 1997, the Director, Center for Disability Operations (CDO)
threatened appellant, stating that if he did not bring the refrigerator
back to the office by 8:00 a.m. the next morning, he would call the
police; he yelled at appellant to get out of his office; and he told
appellant he was "so angry" with him;
on August 12, 1997, the Director held a meeting with the original
co-owners of the refrigerator in order to "set [appellant] up to make a
spectacle of [himself]." During the meeting the Director was inflammatory
and harsh when he expressed to the group that appellant had "violated"
the group by claiming the appliance;
on August 12, 1997, the Director gave appellant a written directive
to either return the refrigerator to the office or deliver it to the
location the majority of the stakeholders previously chose for it;
the Director routinely makes negative and racially insensitive statements
to appellant and other black CDO staffers; and
the Director selects white CDO staffers to participate in regional
conferences and meetings and black staffers are left behind.
Several years prior, appellant and his co-workers each paid a pro rata
share for a refrigerator for use by office staff. During an office
re-location in the summer of 1997, the refrigerator was declared surplus
to be donated to charity.
On August 9, 1997, despite objections from his co-workers, appellant
removed the refrigerator from the agency and claimed "adverse possession."
On August 11, 1997, appellant's supervisor (Director) threatened
appellant with arrest unless he returned the appliance, and initiated
an investigation to consider criminal charges when appellant refused.
The investigative report did not appear to support criminal charges.
The Director then wrote appellant a directive on August 12, 1997, ordering
appellant to return the appliance or deliver it to a designated church
under penalty of sanction for failure to comply. Appellant declined,
asserting both a defense of "self help" to preserve his interest in
personal property, and that the Director lacked jurisdiction to impose
discipline because the action involved a personal matter.
On August 14, 1997, appellant filed a grievance with the Director,
charging that the Director acted outside his authority. The Director
rejected appellant's grievance on the grounds that since no adverse
action had occurred, the issue was not grievable. Later on that day,
the Director gave appellant a Proposal to Suspend. Appellant then filed
an informal EEO complaint alleging the Director discriminated against
him by rejecting his grievance.
On September 3, 1997, appellant received the Decision to Suspend on
September 16 and 17, 1997, and, under the negotiated grievance procedures
between the agency and the American Federation of Government Employees
(AFGE), filed a grievance on September 22, 1997, regarding the 2-day
suspension.
The final agency decision (FAD) dated March 4, 1998, found that
the agreement between the agency and AFGE permitted adjudication
of allegations of discrimination, that allegations 1 through 4 were
inextricably intertwined with the 2-day suspension, and that appellant
filed the grievance prior to filing the formal complaint. The agency
therefore dismissed the allegations for stating the same matter as that
raised under the negotiated grievance procedure. The FAD dismissed
allegation 5 for failing to state a claim, finding that appellant made a
general complaint without identifying any specific incident or indicating
how he suffered an injury or harm. Allegation 6 was dismissed for failure
to comply with applicable time limits contained in EEOC regulations.
The agency found appellant failed to identify any incident occurring
within 45 days of his request for EEO counseling.
On appeal, appellant argues that the union representative acting on
his behalf steered him in a manner to jeopardize his EEO complaint.
Appellant offers as proof of a quid pro quo arrangement with the agency
the fact that the representative received a grade increase in April 1998.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. �1614.301(a) provides in pertinent part
that an aggrieved employee who files a grievance with an agency whose
negotiated grievance procedure permits acceptance of grievances which
allege discrimination may not thereafter file a complaint on the same
matter irrespective of whether the agency has informed the individual
of the need to elect or whether the grievance has raised an issue of
discrimination.
The Commission finds that pursuant to 29 C.F.R. �1614.301(a) appellant
elected, on September 2, 1997, to proceed under the agency's negotiated
grievance procedure regarding the 2-day suspension. Thereafter, he could
not file a formal EEO complaint on the same matter. The Commission
is not persuaded that appellant's union representative misled him.
The Commission finds that appellant has filed numerous EEO complaints
and therefore, has experience with EEO regulations and the EEO process.
The Commission finds that the agency properly dismissed allegations 1
through 4 of appellant's complaint.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age, or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined as "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). The Commission finds that allegation 5
is lacking in supportive facts in that it fails to identify any specific
incidents or racially negative statements made by the Director from which
appellant suffered harm or injury.<1> Therefore, the Commission finds
the agency properly dismissed allegation 5 for failure to state a claim.
The Commission finds that appellant failed to identify any discriminatory
incidents as described in allegation 6 occurring within 45 days of the
date of his contact with an EEO counselor. Appellant has experience with
EEO regulations and the EEO process and therefore should have known of
the applicable filing time frames. The Commission finds this allegation
was properly dismissed pursuant to 29 C.F.R. �1614.105(a)(1).
CONCLUSION
Accordingly, the decision of the agency to dismiss the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is
received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
April 20, 1999 Ronnie Blumenthal
DATE Director
1 The Commission notes that, on appeal, appellant neither challenged
the agency's findings regarding allegations (5) and (6), nor provided
any information as to specific incidents or dates.