David Bales, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
05A40067_r (E.E.O.C. Oct. 30, 2003)

05A40067_r

10-30-2003

David Bales, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


David Bales v. Social Security Administration

05A40067

October 30, 2003

.

David Bales,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Request No. 05A40067

Appeal No. 01A03347

Agency No. 99-0146-SSA

DENIAL OF REQUEST FOR RECONSIDERATION

David Bales (complainant) initiated a request to the Equal Employment

Opportunity Commission (EEOC or Commission) to reconsider the decision in

David Bales v. Social Security Administration, EEOC Appeal No. 01A03347

(September 20, 2001). EEOC Regulations provide that the Commission may,

in its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

We note that in his request for reconsideration, complainant requests

attorney's fees as a remedy for the agency's breach. We note that the

Supreme Court has ruled that only parties who obtain judgments on the

merits of their claim or court-ordered consent decrees in their favor

can receive attorney's fees. Buckhannon Bd. & Care Home, Inc. v. West

Virginia Dept. of Health and Human Services, 532 U.S. 598 ( 2001). Unless

a settlement agreement provides for attorney's fees, they are unavailable.

In this matter, the agreement does not provide for attorney's fees.

Consequently, we find that complainant cannot recover attorney's fees.

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the

decision of the Commission to deny the request. The decision in EEOC

Appeal No. 01A03347 remains the Commission's final decision. There is no

further right of administrative appeal on the decision of the Commission

on this request for reconsideration.

ORDER

The agency is ORDERED, within 30 calendar days of the date this decision

becomes final, to specifically implement the settlement agreement by

taking the following actions:

Retroactively appoint complainant to the position of Social Insurance

Specialist, GS-105-11, under Vacancy Announcement No. M-829, with

appropriate backpay and benefits.

Submit, to the Compliance Officer referenced herein, evidence showing

that the agency has retroactively appointed complainant to the position

of Social Insurance Specialist, GS-105-11, under Vacancy Announcement

No. M-829, with appropriate backpay and benefits.

The agency is further ORDERED to request the Hearings Unit of the

appropriate EEOC field office to schedule a hearing on the discrimination

complaint. The agency is directed to submit a copy of the complaint

file to the EEOC Hearing Unit within 15 calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter, the

Administrative Judge shall issue a decision on the complaint in accordance

with 29 C.F.R. � 1614.109 and the agency shall issue a final action in

accordance with the regulation set forth at 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant 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. �� 1614.407 and 1614.408.

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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 30, 2003

__________________

Date