America Seymour, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJun 16, 1999
01980145 (E.E.O.C. Jun. 16, 1999)

01980145

06-16-1999

America Seymour, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


America Seymour v. Social Security Administration

01980145

June 16, 1999

America Seymour, )

Appellant, )

)

v. ) Appeal No. 01980145

) Agency No. 97-0500-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

)

DECISION

The Commission finds that the agency erred in part in its September 15,

1997 decision dismissing appellant's complaint on the bases of failure

to state a claim under the provisions of 29 C.F.R.�1614.107(a).

The record shows that appellant filed a formal complaint alleging

that she had been discriminated against on the basis of reprisal for

prior EEO activity when: (1) on January 21, 1997, she was not excused

from conducting face-to-face interviews, and the Operations Supervisor

addressed her using inappropriate language; (2) on April 3, 1997, the

Assistant Field Office Manager wrote the appellant a note concerning the

arrival time appellant had recorded on the sign-in sheet; (3) on April 6,

1997, the Operations Supervisor and the Administrative Aide would not

sign appellant's leave slip, directing her instead to the FEI Supervisor,

who did sign the slip; and, (4) when appellant's child care provider

called on April 29, 1997, she was not permitted to speak to appellant

directly; instead, the call was transferred to appellant's voice mail.

The record further shows that on January 28, 1997, appellant reached a

settlement agreement with the agency and agreed that "this settlement

agreement is in full satisfaction of all claims complainant may have

with regard to ... and any other potential or actual complaints which

complainant may have up to the day of execution of this agreement".

In its final decision, the agency found that because allegation (1)

was covered by the settlement agreement, "no further action" would

be taken concerning said allegation. We agree. Although on appeal

appellant contends that allegation (1) was never part of any complaint,

the settlement agreement specifically included any potential complaints

which appellant had until January 28, 1997.<1>

The agency dismissed allegations (2), (3) and (4) on the grounds of

failure to state a claim after finding that the conduct alleged was not

sufficient to establish a claim of harassment. We agree that allegations

(2) and (3) do not state a claim. A review of these allegations

persuades the Commission that when considered together and treated

as true, allegations (2) and (3) are not sufficient to state a claim

either of disparate treatment or a hostile or abusive work environment.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

The Commission finds that appellant has stated a claim in allegation (4).

Appellant alleged that other employees not of her protected group are

notified over the facility intercom that a telephone call is waiting

whereas appellant is not provided this courtesy. Because appellant

alleges a harm to the conditions of her employment, notification

of telephone calls, appellant has stated a claim in allegation

(4). Accordingly, the Commission hereby AFFIRMS the FAD's dismissal of

allegations (1), (2), and (3) and REVERSES the dismissal of allegation

(4). Allegation (4) is REMANDED for further processing consistent with

this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant and a copy

of the notice that transmits the investigative file and notice of rights

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� (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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 (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:

June 16, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 The incident in question occurred on January 21, 1997.