01985000_r
06-25-1999
Martin Green, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Martin Green, )
Appellant, )
)
v. ) Appeal No. 01985000
) Agency No. 98-0455-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On June 9, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 3, 1998, pertaining to
his complaint 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. In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (Caucasian), religion (Jewish),
and in reprisal for prior EEO activity when appellant was subjected to
continued harassment (non-sexual) from union officials, and management
did not intercede on appellant's behalf.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency found that no adverse action was taken against appellant,
that appellant did not allege incidents severe and pervasive enough to
state a claim of harassment, and that discrimination from union officials
was not within the purview of 29 C.F.R. Part 1614.
On appeal, appellant argues that although the actions of union officials
do not fall within the purview of 29 C.F.R. Part 1614, management's
inaction is covered by EEO regulations. Appellant further contends
that he provided ample evidence to his EEO Counselor in support of
his allegations.
The record contains a �Report of Investigation� dated April 1, 1998,
concerning an altercation between appellant and another employee on
March 9-10, 1998. The report details a meeting between appellant (as the
employee's supervisor) and union officials; it also includes information
regarding appellant's attempt to have the situation resolved with the
help of management. The Counselor's Report, dated April 29, 1998, also
describes the March 9-10, 1998, incident. The Counselor's Report mentions
that appellant believes he was subjected to harassment for a period of
years from union officials, and that despite assurances from management,
no management official took steps to end the harassment of appellant.
The Counselor's Report did not identify individual incidents of alleged
harassment, did not specify how management reacted to appellant's requests
for help, did not identify how appellant believes management's failure
to aid him was discriminatory, and did not outline which statements
in the Report, if any, were intended as background as opposed to live
allegations of harassment. Further, appellant's formal complaint,
dated May 7, 1998, does not include a list of allegations or otherwise
provide any clarification of appellant's allegations.
The Commission is unable to determine whether appellant's allegations
state a claim because the agency has not properly defined appellant's
complaint.<1> In such situations, the Commission has remanded the
complaint to the agency for appellant to meet again with an EEO Counselor
in order to reach an agreement on the issues in appellant's complaint.
See Smith v. United States Postal Service, EEOC Request No. 05921017
(Apr. 15, 1993). The Commission noted in Smith that EEO Management
Directive 110 Ch. 2, � III, provides that, at the counseling stage,
the EEO Counselor must be certain the complainant's issues are clearly
defined and the complainant agrees on what issues are to be the subject
of the inquiry and subsequent attempts at resolution.
In defining a complaint, the agency must be careful to distinguish live
allegations from argument or factual background in support of allegations.
It is important that the agency make such distinctions in defining the
complaint so a focused investigation can be conducted and/or focused
FAD can be issued. Smith, supra.
Accordingly, the agency's dismissal is VACATED, and appellant's complaint
is REMANDED for further processing consistent with this decision and
applicable regulations.
ORDER
The agency is ORDERED to perform the following:
Contact appellant in writing to schedule a meeting between appellant and
an EEO Counselor for the purpose of reaching an agreement on the issues
alleged in appellant's May 7, 1998 complaint. After the meeting(s),
the Counselor must issue a new Counselor's report concerning the
meeting(s) and defining the issues and bases in appellant's complaint.
Appellant shall not be required to re-file his May 7, 1998 complaint.
The Counselor shall have appellant identify with specificity the nature
and date of each alleged incident purportedly involving the manager,
union representatives, and appellant.
Appellant shall distinguish each alleged incident by date of occurrence.
Appellant shall also indicate whether each alleged incident is being
presented as a live allegation or as background information and argument
intended to support his live allegations. Appellant shall further
provide evidence as to whether and when any of his allegations resulted
in grievances, EEO complaints, and/or settlements, and the outcome of
such proceedings.
If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a FAD defining the
complaint. Such a FAD must explicitly define all the allegations in
the complaint, i.e., the agency shall not dismiss allegations, de facto,
by failing to define or address allegations. The FAD also shall provide
appeal rights to the Commission.
The agency shall notify appellant in writing of all allegations, if any,
it is accepting for investigation. If the agency wishes to dismiss any
allegations, then it must issue a FAD doing so, with appeal rights to
the Commission. Such a FAD must list all allegations being dismissed
and provide the legal grounds and evidence relied on by the agency in
dismissing any allegations.
The agency shall complete all of the above actions, including the
issuance of the FAD, within forty-five (45) calendar days of the date
this decision becomes final. A copy of the agency's letter to appellant
arranging a meeting with an EEO Counselor, and a copy of the notice of
processing and/or FAD issued pursuant to instructions (5) and/or (6)
above must be sent to the compliance officer 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:
June 25, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The Commission notes, however, that
a challenge to the actions of a union representative performed
in the course of his/her representation is outside the purview
of the EEO process. See Arnold v. Department of Treasury, EEOC
Appeal No. 01981909 (Feb. 24, 1999).