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