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