01980890
10-19-1998
Paul M. Brown, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Paul M. Brown, )
Appellant, )
)
v. ) Appeal No. 01980890
) Agency No. 97-0575-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency decision
was issued on October 6, 1997. The appeal was received by the Commission
on November 10, 1997. Accordingly, the appeal is considered timely<1>
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
On September 11, 1997, appellant filed a formal complaint, alleging
that he was the victim of unlawful employment discrimination on the
bases of race, sex, national origin, age and reprisal. Appellant's
complaint was comprised of a twenty-five page statement that contained
sections identified as Summary of Discriminatory Acts and Allegations
of Discrimination.
On October 6, 1997, the agency issued a final decision. Therein,
the agency found that appellant's complaint was comprised, in part,
of the allegation that appellant was subjected to a continuing pattern
of systemic discrimination when he was not selected for a Financial
Management Position under Announcement No. L-991. The agency accepted
this allegation for investigation. The agency then determined, without
elaboration, that the "remaining issues" raised in appellant's formal
complaint were dismissed on the grounds that these matters were raised in
previously filed EEO complaints pending before the Commission (Complaint
Nos. 97-0124-SSA; 97-0125-SSA; 97-0126-SSA; 97-0324-SSA; and 97-0512-SSA).
The record does not contain copies of the prior complaints cited by the
agency in its final decision.
On appeal, appellant argues that the agency improperly dismissed portions
of his formal complaint, and that it failed to address multiple issues
and allegations that he had raised therein. In response, the agency
argues that a portion of appellant's formal complaint was properly
dismissed for the reasons set forth in its decision.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Here, the agency dismissed a portion of appellant's complaint on the
grounds that the matters contained therein were raised in five prior
complaints. We first note that copies of the prior complaints addressed
by the agency in its final decision are not contained in the record.
Moreover, we find that the manner in which the agency dismissed a portion
of appellant's complaint was deficient.
The Commission notes that EEOC Management Directive for 29 C.F.R. Part
1614, EEO MD-110, Chapter III (October 22, 1992), provides that at the
counseling stage, the EEO Counselor must be certain that the complainant's
issues are clearly defined and that the complainant agrees on what
issues are to be the subject of the inquiry and subsequent attempts at
resolution. Our review of the record reveals that the agency failed to
sufficiently identify the precise allegations dismissed in this complaint.
Instead, after accepting one allegation for investigation, the agency
without elaboration determined that the "remaining allegations" were
dismissed on the grounds that they were raised in previously filed EEO
complaints. Because of the agency's generalized categorization of the
matters raised in appellant's twenty-five page complaint, we are unable
to determine whether the agency's dismissal of a portion of appellant's
complaint was proper. Accordingly, the agency's decision is VACATED.
Appellant's complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to process appellant's complaint in accordance
with 29 C.F.R. �1614.103 et seq. and the ORDER below. Specifically,
the agency shall take the following actions:
1. Within fifteen (15) calendar days of the date that this decision
becomes final, the agency shall notify appellant of the opportunity to
meet with the EEO Counselor to clarify his allegations.
2. Thereafter, the agency shall issue a final decision precisely
defining the allegations raised in appellant's formal complaint.
The final decision must explicitly define all the allegations in the
complaint and not simply classify in a generalized manner an incident or
incidents occurring on unspecified dates, i.e., by referring to some of
the matters raised in the complaint simply as "the remaining allegations."
The agency must specify the grounds for dismissal as well as notify
appellant of his appeal rights. Any allegations accepted for further
processing must be clearly identified.
The agency shall complete all of the above actions within forty-five (45)
calendar days of the date this decision becomes final. A copy of the
notice to appellant of the opportunity to meet with an EEO Counselor,
and the notice of processing and/or final agency decision must be sent
to the Compliance Officer as referenced below.
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.
STATEMENT OF RIGHTS - ON APPEAL
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. 19, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The
dismissal of a complaint or a portion
of a complaint may be appealed to the
Commission within thirty (30) calendar
days of the date of the complainant's
receipt of the dismissal or final
decision. See 29 C.F.R. �1614.402(a).
Because the agency failed on appeal
to supply a copy of the certified
mail receipt or any other material
capable of establishing that date, the
Commission presumes that the appeal was
filed within thirty (30) calendar days
of the date of appellant's receipt
of the final decision.