Leslie A. Jackson, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982721_r (E.E.O.C. Apr. 2, 1999)

01982721_r

04-02-1999

Leslie A. Jackson, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.


Leslie A. Jackson, )

Appellant, )

)

v. ) Appeal No. 01982721

) Agency Nos. 98-0236-SSA

Kenneth S. Apfel, ) 98-0298-SSA

Commissioner, )

Social Security Administration,)

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaints of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. �501 et seq. The final agency decision

was issued on February 27, 1998. The appeal was submitted by fax

transmission on March 9, 1998. Accordingly, the appeal is timely (see

29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order

No. 960, as amended.

ISSUES PRESENTED

1. The first issue presented on appeal is whether the agency properly

dismissed appellant's complaint (Agency No. 98-0236-SSA) on the grounds

that appellant elected to pursue the matter raised therein under the

agency's negotiated grievance procedure.

2. The second issue presented on appeal is whether the agency properly

dismissed appellant's complaint (Agency No. 98-0298-SSA) on the grounds

that appellant failed to contact an EEO Counselor in a timely manner.

BACKGROUND

Appellant initiated contact with an EEO Counselor on December 5, 1997.

On January 7, 1998, appellant filed a formal EEO complaint (Agency

No. 98-0236-SSA) wherein she alleged that she had been discriminated

against on the bases of her physical disability (unspecified), race

(black), and sex (female) when management used discriminatory language

in a grievance decision regarding her 14-day suspension; she was not

allowed to use leave without pay for the period she was charged with

being absent without official leave; and her 14-day suspension was

not reversed. On February 11, 1998, appellant filed another formal

EEO complaint (Agency No. 98-0298-SSA) wherein she alleged that she

was discriminated against on the bases of her sex (female) and race

(black) when she was not selected for a 120-day temporary promotion to

the position of Secretary/Timekeeper in October 1997.

In its final decision of February 27, 1998, the agency dismissed

Agency No. 98-0236-SSA on the grounds that appellant elected to proceed

pursuant to the agency's negotiated grievance procedure. The agency

determined that appellant raised the same matters when she filed a

negotiated grievance on July 25, 1997. The agency stated that the

collective bargaining agreement permits allegations of discrimination.

Agency No. 98-0298-SSA was dismissed on the grounds that appellant

failed to contact an EEO Counselor in a timely manner. The agency

determined that appellant's EEO contact on December 9, 1997, was after

the expiration of the 45-day limitation period. Thereafter, appellant

filed the instant appeal.

On March 30, 1998, the agency issued a subsequent final decision amending

the February 27, 1998 decision and accepting Agency No. 98-0298-SSA

for investigation. Accordingly, Agency No. 98-0298-SSA will not be

addressed further herein.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.301(a) provides in relevant part that

when a person is employed by an agency subject to 5 U.S.C. �7121(d) and

is covered by a collective bargaining agreement that permits allegations

of discrimination to be raised in a negotiated grievance procedure, a

person wishing to file a complaint or a grievance on a matter of alleged

employment discrimination must elect to raise the matter under either

part 1614 or the negotiated grievance procedure, but not both.

Upon review of the record, we note that the agency failed to include

a copy of the collective bargaining agreement or any other evidence

showing that its negotiated grievance procedure permits allegations

of discrimination to be raised therein. Further, the record does not

contain the grievance filed by appellant. Therefore, we are unable to

determine whether the matters raised in the instant complaint are the

same as those raised in the grievance. We also are unable to determine

whether the negotiated grievance procedure permits allegations of

discrimination. Thus, the agency has failed to substantiate the bases

for its final decision. See Marshall v. Department of the Navy, EEOC

Request No. 05910685 (September 6, 1991). Accordingly, the agency's

decision to dismiss Agency No. 98-0236-SSA was improper and is REVERSED.

This complaint is hereby remanded for further processing pursuant to

the ORDER below.

ORDER (E1092)

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded complaint within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

April 2, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations