05980809
10-29-1998
Marianne Pruitt, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Marianne Pruitt v. Social Security Administration
05980809
October 29, 1998
Marianne Pruitt, )
Appellant, )
)
v. ) Request No. 05980809
) Appeal No. 01975426
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
__________________________________)
DECISION ON REQUEST TO RECONSIDER
On May 18, 1998, Marianne Pruitt (appellant) initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider the
decision in Marianne Pruitt v. Kenneth S. Apfel, Commissioner, Social
Security Administration, EEOC Appeal No. 01975426 (April 16, 1998). EEOC
regulations provide that the Commission may, in its discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which 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 DENIED.
Appellant filed a formal complaint on March 10, 1997, alleging the
following: (1) on January 13, 1997, management placed her on leave
restriction; (2) management suggested that she has either dyslexia or
some sort of age-related memory impairment which has caused work-related
problems; (3) management has not provided her with specific data in
support of her alleged performance problems; (4) management has co-workers
monitoring her work; and (5) on November 5, 1996, management placed
her on a performance improvement plan (PIP) and provided her a mentor
because she was allegedly not performing her job duties as expected.
The agency accepted allegations (1) through (4) for investigation but
dismissed allegation (5) for untimely EEO counselor contact. The agency
found that appellant did not contact a counselor until over 90 days had
passed from being placed on the PIP. The previous decision affirmed the
agency's dismissal of allegation (5). The previous decision concluded
that appellant failed to contact the EEO counselor within the 45 day time
limit required by 29 C.F.R. �1614.105(a)(1), and therefor appellant's
complaint was properly dismissed pursuant to 29 C.F.R. �1614.107(b).
The previous decision noted that appellant provided no explanation on
appeal for her untimely contact.
Appellant filed a request for reconsideration in which she argues that new
and material evidence is available pursuant to 29 C.F.R. �1614.407(c)(1).
Appellant's request sets forth her version of events which occurred
on April 25 and July 19, 1997. The events appear to be related to
her leaving work on Family and Medical Leave Act (FMLA) leave and her
attempt to receive official time regarding an unidentified complaint.
No mention is made regarding the procedural issue before the Commission,
namely the agency's dismissal of allegation (5).
We find that appellant failed to present evidence or argument which meets
the criteria of 29 C.F.R. �1614.407. To the extent that appellant's
allegation regarding the PIP may state a claim,<0> it is evident that
appellant did not timely contact the EEO Counselor when she was placed on
the PIP on November 5, 1996. In fact, the events described in appellant's
request appear to have taken place after the complaint at issue was filed.
Appellant does not assert that she was unaware of the time limits, nor
does she present any justification, pursuant to 29 C.F.R. �1614.604(c),
for extending the time limits.
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and
it is the decision of the Commission to DENY appellant's request.
The decision in EEOC Appeal No. 01975426 (April 16, 1998) remains the
Commission's final decision in this matter. There is no further right
of administrative appeal on a decision of the Commission on this Request
to Reconsider.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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 29, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 The Commission has previously held that placement on a PIP is only a
preliminary step to taking a personnel action and therefore properly
dismissed under 29 C.F.R. �1614.107(e). See 57 Fed. Reg. 12643 (April 10,
1992); Jackson v. CIA, EEOC Request No. 05931177 (June 23, 1994).