01980006
06-16-1999
Maurice R. duBois, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Maurice R. duBois v. Social Security Administration
01980006
June 16, 1999
Maurice R. duBois, )
Appellant, )
)
v. ) Appeal No. 01980006
) Agency No. 97-0395-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's August 25, 1997
decision dismissing a portion of appellant's complaint (allegation 1)
for failing to state a claim and the "remaining matters" for stating
the same claims as raised by appellant in prior EEO complaints that have
been decided by the agency or are pending before the Commission.
The agency defined allegation 1 as alleging that appellant was
discriminated against on the bases of age, race, sex, and in retaliation
for participating in the discrimination complaint process, when on January
27 and February 13, 1997 the agency denied the use of a meeting room
to an organization known as GMEN (Government Men for Equality Now).
The agency stated that appellant was a member of GMEN. The agency
dismissed allegation 1 pursuant to 29 C.F.R. �1614.107(a) for failing
to state a claim. The Commission finds that appellant is aggrieved in
allegation 1 under �1614.103. The agency's alleged denial of a meeting
room on the bases of age, race, sex, and retaliation is a harm to a term,
condition, or privilege to appellant's employment. To the extent that
the agency may believe that GMEN is not entitled to use a meeting room,
we find that such an argument is more appropriately raised during a
merits determination. Therefore, we find that the agency improperly
dismissed allegation 1 for failing to state a claim.
The agency has not defined what allegations constitute the "remaining
matters" which were dismissed for stating the same claims as previously
raised by appellant. Without a definition of the allegations dismissed
for stating the same claim as previously raised neither appellant nor the
Commission can determine how the agency defined the dismissed allegations.
The Commission shall remand the allegations described by the agency as the
"remaining matters" so that the agency may either issue a new decision
specifically defining all of the issues it is dismissing or issue a letter
to appellant accepting the specifically defined issues in the complaint.
The agency's decision dismissing allegation 1 is REVERSED and we REMAND
allegation 1 to the agency for further processing in accordance with this
decision and applicable regulations. The agency's decision dismissing
the allegations described as the "remaining matters" is VACATED and we
REMAND the "remaining matters" to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process allegation 1 in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that
it has received allegation 1 within 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 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 60 days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement 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.
Within 30 days of the date this decision becomes final the agency shall
either issue a new decision specifically defining all of the issues it
is dismissing or issue a letter to appellant accepting the specifically
defined issues in the complaint. A copy of the agency's new decision
dismissing the remanded allegations or a copy of the letter to appellant
accepting the remanded allegations for investigation, shall be sent to
the Compliance Officer as referenced herein.
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. �l6l4.604(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 16, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations