EEOC Appeal No. 0120161133
05-17-2016
Davina W. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Davina W.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120161133
Agency No. ATL150893SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 19, 2016, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Senior Attorney Advisor at the Agency's Disability Adjudication and Review in Knoxville, Tennessee.
On November 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of disability and in reprisal for prior protected EEO activity when, beginning February 26, 2015 and ongoing:
1. Complainant was not provided a reasonable accommodation, nor did two Agency officials (A1 or A2) engage in the interactive process regarding her reasonable accommodation request, during the deposition for her prior EEO complaints (consolidated EEOC Nos. 490-2015-00045X/ATL-13-0621-SSA (hereinafter referred to as Complaint 1) and 490-2015-00046X/ATL-13-0959 (hereinafter referred to as Complaint 2));
2. A1 suggested that she should consider disability retirement if she needed a reasonable accommodation for her deposition and declined to identify an "undue hardship" for conducting her deposition starting at 2:00 PM and continuing for two days;
3. A1 failed to disclose a conflict of interest while representing the Agency in her prior EEO complaint(s) and authored emails and other documents that contained discriminatory, harassing and retaliatory comments about Complainant; and,
4. A1 and A2 breached her December 2008 settlement agreement agreed to end her prior EEO activity (EEOC Nos. 490200800001X and ATL070098SSA (hereinafter referred to as Complaint 3)).
On January 19, 2016, the Agency issued its final decision. The Agency determined that a fair reading of Complainant's complaint revealed that she specifically identified activities which have purportedly occurred during the processing of Complaint 1 and Complaint 2, i.e., reasonable accommodation requests and the substance of depositions related to these cases. The Agency therefore dismissed pursuant to 29 C.F.R. 1614.107(a)(8), finding it was an improper "spin-off" complaint of her prior complaints.
In regards to claim 4, the Agency stated that Complainant's allegation that the December 2008 settlement agreement had been breached, as related to Complaint 3, should have been forwarded to the Agency for a response, instead of submitted as a new complaint. The Agency provided Complainant with the address in which to forward her concerns regarding her breach of a previous settlement agreement claim.
The Agency further determined that in regards to Complainant's claims of reprisal, the claims as described would not be the type of activity that would likely deter a reasonable individual from engaging in protected activity. Therein, the Agency dismissed the entire complaint for failure to state a claim.
The instant appeal followed. On appeal, Complainant contends that she has a December 2008 settlement agreement that provided her with specific reasonable accommodations. Complainant stated that in February 2015, an EEOC Administrative Judge (AJ) consolidated her two previous complaints, Complaint 1 and Complaint 2. Complainant states that on April 23, 2015, the Agency issued a notice to take deposition of Complainant. Complainant detailed difficulties she had scheduling a deposition due, in part, because of her medical condition. Complainant contends that when she requested a reasonable accommodation for her deposition, the Agency flatly refused to engage in the interactive process, resulting in further harassment. Complainant also alleged that when a deposition was scheduled, she was faced with additional discrimination when remarks were made regarding her ethics, and she was asked interrogatory questions which strongly intimated that she had a criminal history and/or a history of ethical problems maintaining her law license.
Complainant also contends that the Agency erred when it found that A1 did not have a clear conflict of interest when he was representing the Agency. Complainant contends that the conflict of interest exists because A1 applied for, and was accepted for, an AJ position around the same time she had applied for an AJ position. Complainant also contends that A1 had authored emails and other documents that contained discriminatory, harassing, and retaliatory remarks about Complainant in an effort to impress Agency officials into hiring him for the AJ position.
Furthermore, Complainant contends that Complainant's current appeal does not qualify as a spin-off complainant. Complainant contends that she clearly raised her concerns and dissatisfaction throughout the prior cases. Complainant contends that she wrote multiple emails to A1 and A2 voicing her concern over the process, as well as filing a Motion for a Protective Order. Complainant contends that it is clear that Agency officials neither earnestly attempted to resolve her dissatisfaction, and/or had conflict of interest that undermined the neutrality of any potential investigation.
ANALYSIS AND FINDINGS
Claims 1 - 3 : Spin-off Complaints
EEOC Regulation 29 C.F.R. �1614.107(a)(8), provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the processing of a previous complaint must be raised in connection with the underlying complaint, not as a new complaint.
A fair reading of the matters raised in claims 1 - 3 reflect that Complainant is alleging dissatisfaction with the processing of prior complaints, as noted by the Agency in its final decision, discussed above. The Agency properly dismissed these claims.
Claim 4: Breach of 2008 Settlement Agreement
Claim 4 involves a breach of her December 2008 settlement agreement. The Agency did not address the breach claim, other than to state that it had previously advised Complainant to contact the provided office in order to pursue her claim. We determine that in this Case, Complainant should be provided with the opportunity to further pursue the breach claim. The record contains insufficient evidence to ascertain whether the Agency is in compliance with the subject agreement. Therefore, we will remand this matter in accordance with the following Order.
CONCLUSION
The Agency's final decision dismissing claims 1 - 3 was proper and is AFFIRMED. The Agency's decision to dismiss claim 4 is REVERSED. Claim 4 is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
Regarding claim 4, the Agency is ordered to refer Complainant's breach claim of her 2008 settlement agreement to the Agency's EEO Director for further processing in accordance with 29 C.F.R. � 1614.504. Within forty-five (45) calendar days from the date that this decision becomes final, the Agency shall issue a determination as to whether the Agency has breached the 2008 settlement agreement. The Agency shall provide Complainant with appeal rights to the Commission.
A copy of the Agency's determination regarding compliance with the 2008 settlement agreement must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action 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 within ninety (90) calendar days from the date that you receive this decision 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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 17, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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