01a03757
08-08-2000
Gary Klemz, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Gary Klemz v. Social Security Administration
01A03757
August 8, 2000
.
Gary Klemz,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A03757
DECISION
Complainant filed a timely appeal with this Commission from an agency
letter dated April 11, 2000, that declined complainant's request for
EEO counseling. The Commission accepts the appeal in accordance with
64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1>
According to the record, complainant made numerous requests for EEO
counseling regarding his claim of sexual harassment and harassment based
on reprisal, concerning a hostile work environment in conjunction with
his duties as a union official. The agency responded that it did not
have jurisdiction over the matter because complainant was a full time
union official and his contentions concerned internal union business.
In a letter dated April 11, 2000, the agency reiterated its denial of
EEO counseling.
The Commission first notes that the agency did not issue a final decision
in this case. However, in a letter dated April 11, 2000, discussed
above, the agency declined to provide complainant with EEO counseling,
determining that the matter which complainant wished to pursue related to
union matters. The Commission will construe this April 11, 2000 letter
as a final decision, timely appealed to the Commission.
After review of the record, we find that the agency violated 64
Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.105) when it refused to provide complainant with
EEO counseling. The agency does not have the discretion to refuse to
provide EEO counseling. Rather, the appropriate time to determine whether
complainant has standing to file an EEO complaint is after a formal EEO
complaint has been filed; Commission regulations provide a basis for
the dismissal of a complaint that fails to state an actionable claim at
64 Fed. Reg. 37,656 (1999) (to be codified at 29 C.F.R. � 1614.107(a)),
as well as a mechanism for Commission review of the agency's decision
at 64 Fed. Reg. 37,659 (1999) (to be codified at 29 C.F.R. � 1614.401).
See also Briand v. U.S. Postal Service, EEOC Appeal No. 01950691 (June
22, 1995).
Accordingly, the Commission determines that the agency's decision to
decline to afford complainant pre-complaint processing was improper
and is VACATED. The complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to provide complainant with the opportunity to
obtain EEO counseling. Within thirty (30) calendar days of the date that
this decision becomes final, the agency shall notify complainant that he
has thirty (30) calendar days from receipt of the agency's notification
to contact an EEO Counselor. If complainant contacts an EEO Counselor,
counseling shall proceed in accordance with the provisions of 29
C.F.R. �1614.105 et seq.
A copy of the agency notice providing complainant the opportunity to
obtain EEO counseling, as well as proof of complainant's receipt thereof,
must be submitted to the Compliance Officer as referenced below
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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
August 8, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.