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