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