0520130554
09-22-2015
Complainant v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 0520130554
Appeal No. 0120122812
Agency No. BOS-12-0139-SSA
DECISION ON REQUEST FOR RECONSIDERATION
Both complainant and the agency timely requested reconsideration of the decision in EEOC Appeal No. 0120122812 (May 9, 2013). 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(c).
After reconsidering the previous decision and the entire record, the Commission finds that the requests meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the requests.
BACKGROUND
The record reveals that during the relevant time period, Complainant worked for the Agency as a Claims Development Clerk in Hartford, Connecticut. In August 22, 2012, Complainant applied for a Legal Assistant (Senior Case Technician) position through an online application. On October 24, 2011, the Agency notified Complainant that it did not select her for the position.
On or about March 22, 2013, Complainant filed a formal EEO complaint in which she alleged that the Agency subjected her to discrimination on the basis of disability (hearing impairment) and in reprisal for prior EEO activity when, on or about October 24, 2011, it failed to select her for a Legal Assistant position advertised under vacancy announcement number SM521421.
In a letter dated May 23, 2012, the Agency notified Complainant that it had accepted her complaint for investigation but was holding her disability claim in abeyance because it should be subsumed into class action Jantz v. Social Security Administration, EEOC Appeal No. 072009019 (Jan. 4, 2011), request for recon. den., EEOC Request No. 0520110045 (Jan. 4, 2011). The Jantz class is defined as "all current and former employees with targeted disabilities at the Agency who, on or after August 22, 2005, have applied for promotions, appeared on a best qualified list, and have been denied opportunities for promotion." Jantz, EEOC Appeal No. 0720090019.
Additionally, the Agency notified Complainant that "unlike the claim of physical disability discrimination, the complainant's claim of reprisal-based discrimination should not be held in abeyance." Agency's Letter (May 23, 2012), p. 2. The Agency further notified Complainant that, with respect to her reprisal claim, she had the right to request a hearing with an EEOC Administrative Judge (AJ), request a final agency decision, or file a civil action in federal court. The Agency gave Complainant appeal rights when it issued its letter, and Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120122812.
In our previous decision, the Commission affirmed the Agency's decision with respect to the disability claim but reversed the decision with respect to the reprisal claim. Lee v. Soc. Sec. Admin., EEOC Appeal No. 0120122812 (May 9, 2013). Specifically, the Commission found that the Agency correctly held Complainant's individual claim of disability discrimination in abeyance because it should be subsumed into the Jantz class action. However, the Commission further found that the Agency improperly held Complainant's reprisal claim in abeyance although these claims did not fall within the scope of the Jantz class action. The Commission remanded the reprisal claim to the Agency for further processing in accordance with 29 C.F.R. � 1614.108 et seq.
Requests for Reconsideration
In its request for reconsideration, the Agency maintains that our previous decision erred because the Agency accepted Complainant's reprisal claim for processing and did not hold it in abeyance. The Agency notes that it investigated the reprisal claim and gave Complainant the right to request a hearing with an AJ on this matter.
In her opposition to the Agency's request, and cross-request for reconsideration, Complainant maintains that our previous decision erred because her disability claim should not have been subsumed into the Jantz class action because she did not make the best-qualified list and her job application was not forwarded to the selecting official for consideration. Complainant contends that her disability claim should be remanded to the Agency for processing, instead of held in abeyance.
ANALYSIS
Reprisal
Upon review, we note that the record reveals that in its May 23, 2012, letter, the Agency accepted Complainant's reprisal claim for investigation. The record further reveals that the Agency subsequently investigated the reprisal claim and produced a Report of Investigation on this matter. As such, we find that our previous decision clearly erred when it found that the Agency improperly held the reprisal claim in abeyance. Likewise, our previous decision erred when it remanded the reprisal claim to the Agency for further processing, as the Agency has already processed that claim.
Disability
Regarding Complainant's disability claim, again we note that the Jantz class action is defined as "all current and former employees with targeted disabilities at the Agency who, on or after August 22, 2005, have applied for promotions, appeared on a best qualified list, and have been denied opportunities for promotion."
The record reveals that the Agency did not place Complainant on the best-qualified list or certificate of eligibles for the Legal Assistant position. Agency's Reconsideration Request, Exhibits 7a, 8d, 8e1. The record further reveals that the Agency did not place Complainant on the best-qualified list because she received a score of 89 for the position, and a score of 90 was the cut-off for making the list.
Because Complainant did not appear on the best-qualified list for the position, her complaint is not within the definition of the Jantz class action. Golden v. Social Security Administration, EEOC Request No. 0520120039 (Apr. 6, 2012) (individual complaint not within definition of Jantz class action where complainant's name did not appear on the best-qualified list or on the certificate of eligibles for position). Consequently, we find that our previous decision clearly erred when it held that Complainant's complaint should be held in abeyance and subsumed into the Jantz class action. We further find that Complainant's disability claim should be remanded to the Agency for processing in accordance with this decision and 29 C.F.R. � 1614.108.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the parties' requests meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the requests. The decision of the Commission in Appeal No. 0120122812 is VACATED, and the case is remanded for further processing. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (R0610)
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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
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