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

Equal Employment Opportunity CommissionOct 28, 2003
04A20025_r (E.E.O.C. Oct. 28, 2003)

04A20025_r

10-28-2003

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


David Bales v. Social Security Administration

04A20025

October 28, 2003

.

David Bales,

Petitioner,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Petition No. 04A20025

Appeal No. 01A03347

Agency No. 99-0146-SSA

Hearing No. 120-99-6840X

DECISION ON A PETITION FOR ENFORCEMENT

The Equal Employment Opportunity Commission (EEOC or Commission) docketed

a petition for enforcement from David Bales (hereinafter, petitioner)

requesting enforcement of the Commission's Order in David Bales v. Social

Security Administration, EEOC Appeal No. 01A03347 (September 20, 2001).

This petition for enforcement is accepted by the Commission pursuant to

29 C.F.R. � 1614.503.

In EEOC Appeal No. 01A03347, the Commission found that the agency

breached the August 7, 1997 settlement agreement between the parties.

The Commission also found that the EEOC Administrative Judge (AJ)

improperly dismissed complainant's discrimination claim. The Commission

ordered the agency to take the following actions:

I. 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 become 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.

Petitioner filed a petition with the Commission in which he stated that

the agency failed to implement the relief ordered by the Commission in

EEOC Appeal No. 01A03347. Specifically, by letter dated December 25,

2001, he argues that the agency "has not provided 'evidence' showing

that the [petitioner] received the backpay and benefits in question.

The Agency has not provided a pay stub, deposit slip or other 'evidence,'

nor has it provided an interest worksheet or other document indicating

that the proper interest was paid, or that the proper Thrift Savings

Plan contributions were made." He further argues that if he has been

selected for the GS-11 Social Insurance Specialist position on August 16,

1998, he would have already "performed successfully and would have been

promoted to the GS-12 level effective August 16, 1999."

Regarding the backpay and benefits in question, the Commission find

that petitioner has not shown that the agency has failed to comply

with the Order. The record contains copies of the Notification of

Personnel Action which retroactively appoints petitioner to the position

of Social Insurance Specialist. The record also contains copies of the

National Finance Centers contribution deposits and interest postings into

petitioner's Thrift Savings Plan. The record further contains evidence

of backpay paid petitioner. Specifically, the agency provided copies

of computer entries made by the Federal Personnel/Payroll System. With

regard to petitioner's argument that he should have been retroactively

promoted to a GS-12, the Commission finds that this relief was not

required in the settlement agreement or in our prior Order.

The petitioner's Petition for Enforcement is DENIED.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. 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 (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 28, 2003

__________________

Date