Alice M. Shank, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 6, 1999
01974218_r (E.E.O.C. Apr. 6, 1999)

01974218_r

04-06-1999

Alice M. Shank, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Alice M. Shank, )

Appellant, )

)

v. ) Appeal No. 01974218

) Agency No. 96-0281-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security )

Administration, )

Agency. )

______________________________)

DECISION

On April 29, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated March 27, 1997, pertaining

to her 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. In her complaint, appellant alleged that she was subjected to

discrimination on the bases of sex (female) and in reprisal for prior

EEO activity when:

On January 22, 1996, appellant became aware that she was not selected

for a GS-2001-13 General Supply Specialist position, advertised under

vacancy announcement I-785; and

Appellant was subjected to a hostile work environment when the managers

(all of whom are male) ignored and refused to talk to appellant because

they feared being accused of sexual harassment, and excluded appellant

from information pertinent to her job.

By letter dated January 30, 1997, the agency sent appellant a copy of

the investigative file, and gave appellant the opportunity to request

an administrative hearing. By letter dated March 27, 1997, however,

the agency dismissed appellant's complaint pursuant to a July 31, 1996

settlement agreement of Agency Number 95-0309-SSA, which provided that

appellant would withdraw and dismiss with prejudice all EEO complaints

that were pending at the time of settlement. Specifically, the agency

found that the complaint, Agency Number 96-0281-SSA, was pending at

the time of the July 31, 1996 settlement, and therefore dismissed the

complaint.

On appeal, appellant argues that Agency Number 96-0281-SSA should not

be dismissed, because the agency breached the July 31, 1996 settlement

agreement of Agency Number 95-0309-SSA. Specifically, appellant claims

that she was required to remain in her current position and train her

replacement, rather than immediately being transferred to a different

division as provided in the settlement agreement. Further, appellant

claims that the original settlement agreement, read into the record by

an Administrative Judge, did not require appellant to withdraw all of

her pending complaints.

Appellant has clearly alleged a breach of her July 31, 1996 settlement

agreement. If appellant prevailed on her allegations of breach, she

may be entitled to the reinstatement of the complaints settled by that

agreement. Accordingly, we find that this matter must be REMANDED to

the agency to address the breach allegations.

ORDER

The agency is ORDERED to process appellant's allegations of breach

in accordance with 29 C.F.R. �1614.504. Within thirty (30) calendar

days of the date this decision becomes final, the agency shall issue a

final decision regarding appellant's allegations of breach. A copy of

the agency's final 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:

April 6, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations