0520080378
03-17-2006
Benjamin S. Burton, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Benjamin S. Burton,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520080378
Appeal No. 01A53227
Agency No. 05-0090-SSA
DECSION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Benjamin
S. Burton v. Social Security Administration, EEOC Appeal No. 01A53227
(March 17, 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 the underlying case, complainant alleged that he was subjected to
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., on the basis of his sex when:
1. His work product as a Claims Representative is under 100% review
while that of similarly situated female employees is not similarly
scrutinized;
2. Leave is approved for female employees, the appointment calendar
is adjusted to reflect their absence and female employees are allowed
to catch up on work while complainant is not;
3. On September 7, 2004, several of complainant's work reviews
containing largely written derogatory comments were left in complainant's
mailbox where his coworkers could see them;
4. The State Director conducted an investigation on February 18,
2004, involving all office employees in response to concerns raised
by several female employees; however, no similar inquiry was made into
complainant's repeated complaints of harassment;
5. The Management Support Specialist manipulates office policy
regarding "walk-in" assignments which results in a biased workload for
complainant;
6. Female employees are permitted to read various materials at their
desks while complainant is required to go to a private room to read his
textbooks;
7. When complainant's mistakes are detected by the Management Support
Specialist, she makes unnecessary, humiliating and demeaning remarks on
the reports of contact while she does not make similar remarks on report
of contact generated from mistakes made by female employees; and
8. Complainant was denied a performance award.
In a decision dated March 24, 2004, the agency issued a final decision
(FAD) dismissing the complaint on the grounds that it raised matters
addressed in the agency's negotiated grievance procedure pursuant
to 29 C.F.R. � 1614.107(a)(4). Complainant appealed that FAD to the
Commission.
In Burton v. Social Security Administration, EEOC Appeal No. 01A53227
(March 17, 2006), the Commission affirmed the agency's dismissal of
complainant's claims of discrimination and harassment, finding that
complainant's allegations were a collateral attack on the grievance
process. Complainant requested that the Commission reconsider its
decision.
In his request for reconsideration, complainant argued, for the first
time, that as a non-bargaining unit member, he is entitled to file both
a grievance and an EEO complaint on the same matter. In support of his
position, complainant cites to the agency's Discrimination Complaint
Process information that states that "Non Bargaining Unit Employees
can file a grievance as well as an EEO complaint on the same issue."
As such, complainant argues that the Commission erred in affirming the
agency's FAD.
As a preliminary matter, we remind complainant 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), 9-17 (November 9, 1999). The record of the underlying decision
shows that although complainant argued that he was a non-bargaining unit
employee, he did not previously explicitly argue that he was entitled to
both the grievance process and the EEO process. Additionally, complainant
did not demonstrate in his request for reconsideration that this new
argument was based on evidence that was previously unknown to him.
As such, 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 pursuant to the aforementioned regulations. Nonetheless, on
our own motion, the Commission reopens and reverses the prior decision.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). However, in the instant case,
we find that complainant did not lodge a collateral attack against
the grievance process. We note that nothing in the record shows that
complainant's claims address the previous grievance process. Instead,
according to the EEO counselor's report, complainant did not mention
the grievance process and only mentioned the actions in his workplace
that culminated in his filing an EEO claim. As such, we find that
complainant's claim did not raise a collateral attack. Moreover, as
a non-bargaining unit employee, complainant retained the right to file
both a grievance and an EEO complaint on the same matter. We further
find that no other reason exists to dismiss complainant's complaint.1 As
such, after a review of the record in its entirety, it is the decision
of the Equal Employment Opportunity Commission to reverse and remand
the agency's FAD. The agency shall comply with the order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (R0408)
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 (Z0408)
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
___7-03-2008____
Date
1 Additionally, we note that in the underlying case, the agency argued
that complainant's claims fail to state a claim. The regulation set forth
at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that 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, .106(a). The Commission's
federal sector case precedent has long defined an "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). In the instant case, we find that complainant stated a claim of
hostile work environment since the allegations are sufficiently severe or
pervasive to state a claim of harassment. Further, we note that claims
(1), (2), (4), (6), (7) and (8), state claims of disparate treatment
discrimination.
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0520080378
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520080378