01A44337_r
10-29-2004
George Edwards, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
George Edwards v. Social Security Administration
01A44337
October 29, 2004
.
George Edwards,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A44337
Agency No. 04-0247-SSA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 11, 2004, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. In his complaint, complainant alleged that
he was subjected to discrimination on the bases of age (over 40), race
(White) and in reprisal for prior protected activity when:
Complainant's request of March 10, 2004, for reassignment from Disability
Program Branch I (DPBI) was denied. Complainant claims that his
assignment to DPBI creates undue stress for him, thus subjecting him to
harassment and a hostile work environment.
Complainant was denied the assignment of an individual mentor upon his
arrival to DPBI.
The agency dismissed issue (1) of complainant's complaint pursuant to the
regulation set forth at 29 C.F.R. � 1614.107(a)(4), for raising the same
matter in a negotiated grievance procedure which permits allegations of
discrimination. Additionally, the agency dismissed issue (2) pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The agency noted that in January 2002, complainant
had a discussion with his supervisor during which he related problems
he was having that arose from not having an individual mentor/reviewer.
The agency notes that complainant did not contact an EEO Counselor with
regard to this issue until March 26, 2004.
On appeal, complainant claims that his grievance against his branch
supervisor is distinct from his EEO complaint. Complainant claims
that his grievance concerns harassment for being told by his branch
supervisor that he was expected to obtain a 2.0 case per day average to
achieve the grade of GS-13 when he was a GS-12 employee as of May 2003.
He states that his grievance is not on the basis of not having received
a branch transfer; however, he acknowledges not having received a branch
transfer when he initially requested one is partially responsible for
the harassment. He claims that the request for a transfer was a remedy of
his grievance. Complainant notes that he initially requested a transfer
January 21, 2003 and again on May 21, 2003. Complainant states that by
March 2004, he realized that he had been left in Branch 1 for over a year
since his initial request for a branch transfer and under the supervision
of the person against whom he had filed a harassment grievance. He states
that on March 10, 2004, he submitted three memos to Director A. He notes
one memorandum was a new request for a branch transfer, another was
a separate clarification for the case per day production requirements
for achievement of GS-13, and a third was a request for clarification
as to the language in the Step 2 Grievance Decision noting improvement
in his work. Complainant stated that it took nearly six months for
the agency to respond to his January 21, 2003 transfer request; thus,
he stated he wanted the March 10, 2004 transfer request granted within
seven days. Complainant stated that after seven days passed without a
transfer, he believed he was being discriminated against and harassed
by not having received a branch transfer for over a year.
Upon review, we find the agency properly dismissed issue (1) for
raising the matter in a grievance procedure that permits allegations
of discrimination. The record reveals complainant filed a grievance
on June 13, 2003, alleging that he was improperly denied a transfer to
another branch and that he was denied participation in the OHA Leadership
Development Program (LDP). In his grievance, complainant also alleged
that he was subjected to undue stress due to demands brought upon him by
the Administrative Law Judge (ALJ) in his branch and requested a transfer
to either Branch 5 or 19. The record reveals the grievance was denied at
Step 2 on January 9, 2004. The record contains a copy of the collective
bargaining agreement which permits claims of discrimination to be raised
in the agency's negotiated grievance procedure or the statutory (EEO)
process, but not both. After a review of the record, the Commission finds
that issue (1) was properly dismissed on the grounds that complainant
raised the matter in a negotiated grievance procedure that permits
allegations of discrimination pursuant to 29 C.F.R. � 1614.107(a)(4).
Additionally, we find that the agency properly dismissed issue (2) for
untimely EEO Counselor contact. In issue (2) complainant alleges that
he was denied the assignment of an individual mentor upon his arrival
to DPBI. The record contains complainant's January 21, 2003 Request
for a Transfer in which he notes that in January 2002, he discussed
with his supervisor not having received an individual mentor/reviewer
(as promised during training). Upon review, we find that although
the alleged discriminatory occurred at the latest in January 2002,
complainant did not initiate EEO Counselor contact until March 26, 2004,
which is beyond the applicable limitations period. On appeal, complainant
has failed to present adequate evidence to warrant an extension of the
applicable limitations period.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (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 29, 2004
__________________
Date