05970229
10-08-1998
Elbert V. Brooks, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Elbert V. Brooks v. Social Security Administration
05970229
October 8, 1998
Elbert V. Brooks, )
Appellant, )
)
v. ) Request No. 05970229
) Appeal No. 01961036
Kenneth S. Apfel, ) Agency No. SSA-199-95
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 9, 1996, Elbert V. Brooks, (hereinafter referred to as
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Elbert V. Brooks
v. Shirley Chater, Commissioner, Social Security Administration, EEOC
Appeal No. 01961036 (November 29, 1996). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence that tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is GRANTED.
ISSUES PRESENTED
(1)Whether the previous decision properly affirmed the agency's dismissal
of two of three allegations raised in appellant's complaint for failure
to state a claim; and (2) whether the order of the previous decision
remanding the third allegation for processing as an allegation of
settlement breach should be modified herein.
BACKGROUND
The previous decision accurately set forth many of the pertinent facts
and therefore the factual background provided below is limited to
those additional facts necessary to our holding herein. The previous
decision found that the agency had properly rejected appellant's
formal complaint allegations that based on race (black), sex (male),
and reprisal discrimination:(1) on May 27, 1994, he was denied sick
leave for a physician's appointment and was charged as being absent
without leave; and (2) on June 8, 1994, a Congressional Inquiry was
brought to his attention during a progress review at which time he was
not given the opportunity to face an individual who had accused him of
rudeness.<1> With respect to allegation (2), the EEO Counselor's report
indicates that appellant alleged that the rudeness had a negative impact
on his progress review. The review also referred to appellant's alleged
rudeness to customers.
The previous decision found that these allegations failed to state a
claim in that the agency claimed that allegation 1 did not occur and
the record contained an approved application for sick leave signed on
November 27, 1994. The decision further found that appellant did not
demonstrate how he was harmed by the incident described in allegation
2. With regard to appellant's complaint allegation (3) that he was not
afforded all of the training courses agreed upon by a November 1992
settlement agreement in which he had settled several complaints of
discrimination, the previous decision found that appellant had raised
allegations of settlement breach pursuant to 29 C.F.R. �1614.504(a),
but that the record did not reflect whether he had received all of
the cited courses. Thus, the previous decision ordered the agency to
supplement the record with documentation regarding whether appellant had
received the subject training and issue a final agency decision (FAD)
addressing appellant's allegation of settlement breach.
In his request for reconsideration, appellant asserts that allegations
1 and 2 of his complaint state a claim in that they are part of the
agency's campaign of discriminatory harassment against him. He further
argues that regardless of whether he ultimately was charged with AWOL
and denied leave, he was harmed by allegation 1 because he was the only
individual who was required to present medical documentation in order
to take three hours of medical leave. Appellant submits copies of the
May 27, 1994 request for sick leave at issue which bears an obliterated
annotation of AWOL and a copy of a note stating that appellant needed to
have his physician "sign this or it will be AWOL." Appellant requests
damages for the agency's breach of the settlement agreement, costs and
attorney's fees.
The agency responds by asserting that appellant has failed to submit
new argument or evidence that would meet any of the criteria for
reconsideration. The agency asserts, however, that allegation 3 was
erroneously accepted by the agency as an issue in the subject complaint
when it ought to have been processed as an alleged noncompliance matter
in accordance with 29 C.F.R. �1614.504. It references its February 4,
1997 compliance report which indicated that appellant had not been
provided with the agreed upon classes and that it would take action to
ensure that appellant be given the opportunity to request and enroll in
the subject courses. The agency further requests that the Commission
modify its previous decision and dismiss allegation 3 since the issue
states the same claim that should have been processed in accordance with
29 C.F.R. �1614.504, and which is currently pending the Commission's
decision.<2>
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets the criteria of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to grant appellant's request.
We find that reconsideration of the previous decision is warranted
pursuant to 29 C.F.R. �1614.407(c)(2) because appellant alleged that
allegations 1 and 2 are part of a concerted campaign of discriminatory
harassment against him by the agency. In addition, with regard to
allegation (1), although appellant was not charged with AWOL, he was
nonetheless harmed in that the agency allegedly subjected him to disparate
requirements for medical documentation not imposed upon other employees
in an effort to harass him. Moreover, the tenor of the EEO counselor's
report and appellant's complaint clearly indicates that appellant was
complaining about the negative quality of his progress review, an event
that was committed to writing and apparently retained in agency files.
Appellant's request that his progress review be removed from agency
records and his assertion that the treatment of his leave request and
the review were part of agency harassment are sufficient to establish
that the agency's dismissal of these allegations for failure to state
a claim was erroneous. Therefore allegations 1 and 2 are remanded for
continued processing.
With respect to the agency's contention regarding allegation 3,
we note that the previous decision set forth the procedures in 29
C.F.R. �1614.504(a) applicable to allegations of settlement breach and
properly ordered that the allegation be processed as an allegation of
settlement breach, culminating in the issuance of an agency FAD. While
the agency represents that it has submitted a compliance report on
the previous decision and that the matter of the subject settlement
breach is currently pending the Commission's decision, our records do
not indicate that any appeal from a final agency decision regarding
the settlement breach allegation is pending before us. Instead, the
agency has indicated in its compliance report that it now intends to
afford appellant the opportunity to take the subject courses. We view
the agency's report as an admission of the alleged breach. While we have
no indication that the agency has issued a final decision to appellant
on this point as directed by the previous decision, in the interest of
judicial economy, we will address the agency's breach herein. We find
that specific performance of the portion of the November 1992 agreement
which has been breached will afford appellant a more appropriate remedy
for the subject breach than reinstatement of appellant's complaints
in that appellant has received all of the other benefits promised in
the agreement and cannot be returned to his status quo position. See
O'Farrell v. U.S. Postal Service, EEOC Petition No. 04920001 (February
28, 1992). Therefore, we have incorporated this remedy in our Order set
forth below.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request meets the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to GRANT
his request. The decision of the Commission in EEOC Appeal No. 01961036
(November 29, 1996) is REVERSED in part and the agency's final decision
is REVERSED. Appellant's allegations 1 and 2 are REMANDED for further
processing. The agency is directed to comply with the Order of the
Commission set forth below. There is no further right of administrative
appeal from a decision of the Commission on a request to reconsider.<3>
ORDER (E1092)
(1) The agency is ORDERED to process the remanded allegations 1 and 2
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge
to the appellant that it has received the remanded allegations within
thirty (30) calendar days of the date the agency receives this decision.
The agency shall issue to appellant a copy of the investigative file
and also shall notify appellant of the appropriate rights within one
hundred fifty (150) calendar days of the date the agency receives this
decision, unless the matter is otherwise resolved prior to that time.
If the appellant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the correspondence that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
(2) The agency shall, within ten (10) days of the date this aspect of
the decision becomes final, offer appellant the opportunity to enroll,
at agency expense, in the remaining courses set forth in section 5 of
the November 1992 settlement agreement.<4>
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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)(Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
The following appeal rights are applicable to allegations 1 and 2:
RIGHT TO FILE a CIVIL ACTION (R0993)
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. 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. 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.
The following appeal rights are applicable to allegation 3:
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she 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 Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
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 (R0993)
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. 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. 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 (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:
OCT 8, 1998
___________________ _____________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1We note that appellant requested damages for agency harassment during EEO
counseling and in his formal complaint. He further requested that negative
progress reviews be purged from agency records. The record contains such
a review for June 18, 1994, the date in question and an earlier review
from June of 1993. The 1993 progress review specifically states that a
copy of the review was being placed in appellant's 7-B file.
2The agency does not submit a final agency decision and appeal to verify
this representation.
3Since this is our initial determination concerning the merits of
appellant's allegation of settlement breach, we will afford the parties
reconsideration rights regarding this issue.
4Since appellant is a prevailing party with regard to his allegation
of settlement breach, and was represented by counsel, he is entitled
to request attorney's fees for reasonable hours expended to enforce the
agreement. See Eaglin v. U.S. Postal Service, EEOC Request No. 05910605
(August 22, 1991). Consequently, we have added instructions for
requesting such fees in a standard paragraph set forth in the rights
section of the decision.