01a42238
03-28-2005
Howard Egerman, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Howard Egerman v. Social Security Administration
01A42238
March 28, 2005
.
Howard Egerman,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A42238
Agency No. 04-0073-SSA
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds
of failure to state a claim. On November 24, 2003, complainant filed
a formal EEO complaint wherein he claimed that he was subjected to a
hostile work environment on the bases of his age (over 40), disability
(Ludwig's angina and carpal tunnel syndrome), religion (Jewish) and in
reprisal for his previous EEO activity under Title VII, the Rehabilitation
Act and the Age Discrimination in Employment Act when:
1. Complainant was subjected to harassment by the denial of his request
for use of official time in a union capacity as a representative for an
employee at a Workers' Compensation proceeding on July 25, 2003.
2. In August 2003, complainant was subjected to harassment when he and
his union representative were called to a �Weingarten� meeting with his
Branch Manager to discuss whether complainant had improperly used the
union mail privilege to convey correspondence of a personal nature.
In its dismissal of claim (1) of the complaint, the agency determined that
the proper forum for this matter is the agency/labor union negotiated
grievance process. With respect to claim (2), the agency determined
that no adverse action was taken against complainant. The agency stated
that complainant failed to show that some direct harm affected a term,
condition, or privilege of his employment.
Upon review of the entire record, we observe with regard to claim (1)
that complainant contends that his request for official time pertained
to activity as a representative for another individual at that person's
Workers' Compensation hearing. The Commission has held that the right to
official time for a representative flows from complainant, and therefore,
a denial of official time for a representative is properly raised by
a complainant, and not the representative. Lambert v. Social Security
Administration, EEOC Request No. 05970586 (October 8, 1998). Therefore,
we find that where complainant acted as a representative on behalf of
another individual, he does not have standing to raise the issue of
being denied official time.
As for claim (2), we find that the discussion concerning complainant's
possible improper use of the union mail privilege fails to state
a claim as it is more appropriately handled through the collective
bargaining process. The matter at issue does not concern a term,
condition, or privilege of employment over which the Commission will
exercise jurisdiction, but rather concerns union matters. Furthermore,
complainant has not shown how he was aggrieved in claim (2).
Accordingly, the agency's decision dismissing the complaint on the
grounds of failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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
March 28, 2005
__________________
Date