Linda Newbrough, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 21, 2012
0120120068 (E.E.O.C. Mar. 21, 2012)

0120120068

03-21-2012

Linda Newbrough, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.




Linda Newbrough,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120120068

Agency No. DEN110493SSA

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated August 27, 2011, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §

791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as

a Teleservice Representative at the Agency’s Golden Teleservice Center

in Golden, CO. On July 20, 2011, Complainant filed a formal complaint

alleging that the Agency subjected her to discrimination on the bases of

disability (back) and age (64) when on February 28, 2011, Agency counsel

insisted on taking Complainant’s deposition despite being informed that

Complainant was under the influence of a narcotic and could not continue.

The Agency dismissed the formal complaint pursuant to 29 C.F.R. §

1614.107(a)(8). Specifically, the Agency found that here Complainant

simply expressed his dissatisfaction with the processing of a

previously filed complaint. The record indicates that in connection

with Complainant’s previously filed complaints, DEN-10-0043 and

DEN-10-0036, the Agency filed a Motion to Compel Discovery and on

March 24, 2011, Complainant, through counsel filed a Response to the

Agency’s Motion. Thereafter, on June 13, 2011, an Equal Employment

Opportunity Administrative Judge (AJ) issued an Order addressing the

Complainant’s inability to continue with the deposition due to her

medical condition. Therein, the AJ found that Complainant and her

representative “engaged in obstructionist conduct that has slowed

down the processing of Complainant’s case,” with respect to their

behavior during a February 28, 2011 deposition.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall

accept a complaint from an 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. Dep't of

the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant

cannot establish that s/he is aggrieved, the agency shall dismiss a

complaint for failure to state a claim.

EEOC Regulation 29 C.F.R. § 1614 107(a)(8) provides that an Agency

shall dismiss claims alleging dissatisfaction with the processing of a

prior complaint. Dissatisfaction with the EEO process must be raised

within the underlying complaint, not as a new complaint. See EEOC -

Management Directive 110 (MD-110) 5-23. 5-25 to 5-26 (Nov. 9, 1999).

Upon review, the Commission finds that the Agency’s dismissal

in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(8) was

proper. The record discloses that in the instant matter, Complainant is

challenging the Agency’s conduct with respect to a February 28, 2011

deposition in connection with previously filed complaints DEN-10-0043

and DEN-10-0036. Complainant is essentially alleging dissatisfaction

with the processing of her own previous EEO complaints. This does not

state an independent claim of discrimination.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's

complaint is AFFIRMED for the reasons set forth herein.

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

March 21, 2012

__________________

Date

2

0120120068

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120120068