0120131257
07-11-2013
Carl Jackson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Carl Jackson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131257
Agency No. HQ121025SSA
DECISION
On January 18, 2013, Complainant filed a timely appeal concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist at the Agency's facility in Baltimore, Maryland.
On February 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and disability (unspecified) when:
1. On October 28, 2011, he received a Performance Assessment and Communication System (PACS) rating that contained derogatory statements and was lower than level 5;
2. He was assigned to do the work of other analysts but did not have an analyst assigned as his back-up;
3. Beginning in August 2009 to the present, his requests for training and leadership opportunities were denied;
4. In 2009, 2010 and 2011 He was not selected for several vacancies including:
a. On August 24, 2009 not selected for Vacancy Announcement Number (VAN) SH-258841
b. On July 6, 2010, not selected for VAN SH-360766
c. On April 18, 2011, not selected for VAN SH 457404
d. On February 2, 2010 not selected for VAN SH 315739
e. On July 2, 2010, not selected for VAN SH 359520
f. On October 12, 2010 not selected for VAN SH 394622
g. On July 11, 2011 not selected for VAN SH 498838
In correspondence dated April 16, 2012, the Agency advised Complainant that claims 1, 2 and 3 of Complainant's complaint would be accepted for investigation. The Agency further advised Complainant that claim 4 (a-g) was dismissed as untimely in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2) and that the dismissal of claim 4 was reviewable by an EEOC Administrative Judge, (AJ) if a hearing was requested on the remaining claims, or in an appeal to the EEOC's Office of Federal Operations, (OFO).
The record further indicates that by amendment dated May 15, 2012, Complainant alleged that:
5. On July 16, 2012, he was notified that he was not selected for a promotion to the position of Information Technology (IT) Specialist advertised under Job Announcement Number SH-498838; and
6. On April 25, 2012, his supervisor chastised Complainant and in an email, accused Complainant of not meeting with him, (supervisor), for Complainant's mid-year review at the scheduled time and place.
The record indicates that Complainant included the following incidents as additional evidence in support of his claim that he had been subjected to a hostile work environment;
a. Complainant further alleged that on April 25, 2012, he received a PACS review that contained negative comments from Complainant's supervisor indicating that Complainant "refused to work with and accept work from the team leader." Complainant alleged that on March 6, 2012, his supervisor allegedly threatened Complainant with additional negative comments and remarks in his performance appraisal because Complainant opposed discriminatory treatment.
b. Complainant asserted that on January 31, 2012, his supervisor and team leader accused Complainant of submitting information in an incorrect format, and treated him with hostility when Complainant approached the team leader for clarification regarding the correct format. Complainant alleges that his supervisor condoned the behavior of the team leader.
c. Complainant also alleges that on December 29, 2011, the team leader sent him an email message complaining that Complainant sent her the wrong information for a task that she had assigned to him. Complainant avers that the team leader assigned the task to another employee.
On August 5, 2012, the Agency responded to Complainant's amendments with correspondence gain advising him that claims 1, 2 and 3 of his complaint had been accepted by the Agency pursuant to its letter dated April 16, 2012 and that claim 4 was dismissed as previously stated, in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). The Agency further advised Complainant that claims 5 and 6 were accepted. However, with respect to claim 5 the Agency determined that it was part of a class complaint pending certification by the EEOC.
Specifically, the Agency informed Complainant that claim 5 was part of the class complaint identified as Jantz v. Social Security Administration, EEOC Appeal No. 07209019 (August 25, 2010), req. for recons. denied, EEOC Request No. 0520110045 (January 4, 2011), req. for clarification, EEOC Petition No. 0420110004 (March 15, 2011). Therein, the Commission defined the class as "all current and former employees with targeted disabilities at the Social Security Administration who, on or after August 22, 2003 have applied for and made a Best Qualified List for promotion, but were not selected for promotion. In that regard, the Agency advised Complainant that claim 5 of would be held in abeyance pending the outcome of the class complaint. The Agency further advised Complainant that claims1,2,3, 5 and 6 (a-c) would be investigated and processed pursuant to the provisions of Title 29 of the Code of Federal Operations, Part 1614.
Finally, in correspondence to Complainant dated January 11, 2013, purportedly transmitting the Report of Investigation including an investigative summary and "notice of procedural rights," the Agency again informed Complainant that claims 1, 2 and 3 were accepted, claim 4 (a-g) was dismissed as untimely, claims 5 and 6 (a-c) were accepted and claim 5 was held in abeyance pending the outcome of the class complaint. The Agency also informed Complainant of his right to appeal the Agency's decision to subsume claim 5 into the class complaint, to the Commission's Office of Federal Operations.
Following Complainant's receipt of the Agency's January 11, 2013 correspondence, this timely appeal of the Agency's decision concerning claim 5 followed.
ANALYSIS AND FINDINGS
Regarding the class complaint at issue in this matter, we note that on January 4, 2011, the Commission reaffirmed its decision in Jantz v. Social Security Administration, which certified a class defined as "all current and former employees with targeted disabilities at [SSA] who, on or after August 22, 2005, have applied for promotions, appeared on a best qualified list, and have been denied opportunities for promotion." See Jantz., EEOC Appeal No. 0720090019 (Aug. 25, 2010), req. for recons. denied EEOC Request No. 0520110045 (Jan. 4, 2011).
The Commission notes that it has previously held that a complainant may appeal an agency decision to hold an individual complaint in abeyance during the processing of a related class complaint. See Roos v. United States Postal Service, EEOC Request No. 05920101 (February 13, 1992). In addition, Equal Employment Opportunity Management Directive-110, Chapter 8, � III(C) (November 9, 1999) provides, in relevant part, that "an individual complaint that is filed before or after the class complaint is filed and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint."
Complainant claims that he was subjected to discrimination based in part on his disability when he was not-selected for the position described in claim 5 and in his complaint, Complainant alleged that the Agency failed to advance his IT career through promotions because of his disability. The record contains documentation indicating that Complainant was placed on the best qualified list for the position, but not selected. Upon review, we find that the Agency correctly held claim 5 concerning denial of promotion, in abeyance. Claim 5 of the instant matter is properly subsumed within the Jantz et. al. class action. In light of the Commission decision in Jantz, we find that the Agency properly subsumed claim 5 Jantz class complaint.
The Agency also indicated that Complainant's remaining claims concerning the bases of race, sex and reprisal are being processed pursuant to EEOC Regulations 29 C.F.R. Part 1614.
Accordingly, the Agency's decision to hold Complainant's claim of disability discrimination (claim 5) in abeyance is AFFIRMED for the reasons set forth herein. Claim 5 is now subsumed in the Jantz class action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
July 11, 2013
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Carl Jackson
308 E Lafayette St
Baltimore, MD 21202
Lena Thompson
6201 Security Blvd 472 NCC
Baltimore, MD 21235
Alan S. Frank, Acting Associate Commissioner
Office of Civil Rights and Equal Opportunity
Social Security Administration
P.O. Box 17712
Baltimore, MD 21235-7712
__________________
Date
______________________________
Compliance and Control Division
01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of Federal Operations Director, Appellate Review Program FROM: Sinclair, Sabrina, Attorney 7/10/13 Mary Jean Secoolish, Supervisor Catherine McNamara, Division Director Appeal Number(s) 0120131257 Agency Number(s) HQ121025SSA Hearing Number(s) Complainant(s): Carl Jackson Agency: SSA Decision: Affirmed Statute(s) Alleged Title VII Basis(es) Alleged AJ, HM - Disability/Mental, HP - Disability/Physical, and RB - Race/Black Issue(s) Alleged A6, H1, O1, and P3 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits decision
? 4B - OFO found discrimination
List basis code(s):__________________
List issue code(s):__________________
? Comp. damages (C3) awarded?
? 4C - OFO found no discrimination/made no
determination re: discrimination
? 4E - Agency found discrimination
X 4F - Agency found no discrimination
X 4H - OFO affirmed Agency
? 4I - OFO reversed Agency
? 4J - OFO modified Agency (NOTE: if affirmed
in part and reversed in part, then (3L)
code required if at least one issue is
remanded)
? 3L - OFO remanded PART of Agency's merits
Decision (NOTE: Do not use 3L with a
4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
? 4L - AJ found no discrimination
? 4M - AJ made no finding ? 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
? 4T - AJ issued Summary Judgment decision
? 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages-APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to Agency for remedies
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed Merit Modified ? Procedural Affirmed = A
? Procedural Reversed = B
? Procedural Modified = C ? Procedural Affirmed = D
? Procedural Reversed = E
? Procedural Modified = F ? Procedural Affirmed = G
? Procedural Reversed = H
? Procedural Modified = I
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Carl Jackson SSA 0120131257
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken None
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken None
Class Action Cases
Appeal No. ORADS Status Related (Yes/No) Actions Taken
Sinclair, Sabrina July 10, 2013
Attorney Date
2
0120131257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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