01983527
06-03-1999
Paul M. Brown, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Paul M. Brown v. Social Security Administration
01983527
June 3, 1999
Paul M. Brown, )
Appellant, )
)
v. ) Appeal No. 01983527
) Agency No. 98-0115-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's March 4, 1998
decision dismissing a portion of appellant's complaint (allegation 1)
for stating the same claim previously raised by appellant and dismissing
the remainder of the complaint (allegation 2) for raising the matter in
a negotiated grievance procedure prior to filing the instant complaint.
The agency defined the complaint as follows:
The agency has been and is pursuing a continuing systemic discriminatory
policy against all males and particularly white males in the following
personnel practices: hiring, ratings, awards, and promotions; the agency's
Affirmative Employment Program is illegal and violates appellant's fifth
amendment right to equal protection; the agency declared appellant's
representative of choice ineligible to serve as a representative in EEO
matters; appellant is unable to get fair and equitable EEO counseling;
and the agency has created a hostile employment atmosphere for all White
males and appellant.
The agency has failed to upgrade appellant's position to a GS-13.
As an initial matter the Commission finds that the agency properly
defined the allegations in the complaint.
Allegation 1
The agency dismissed allegation 1 for stating the same claim as previously
raised by appellant but has failed to supply copies of those complaints
or copies of decisions concerning those complaints. Therefore, the
Commission can not determine from the instant record if allegation 1
states the same claim as previously raised by appellant. The Commission
shall remand the matter so that the agency may supplement the record with
copies of complaints (and decisions which concern those complaints) which
state the same claim as allegation 1. Although the agency referenced a
civil action filed on the same matter, the agency did not supply a copy
of the civil action and did not dismiss allegation 1 on such grounds.
Allegation 2
The agency shall dismiss any portion of a complaint where the complainant
has raised the matter in a negotiated grievance procedure that permits
allegations of discrimination and �1614.301 indicates that the complainant
has elected to pursue the non-EEO process. 29 C.F.R. �1614.107(d).
An aggrieved employee who files a grievance with an agency whose
negotiated agreement permits the acceptance of grievances which allege
discrimination may not thereafter file a complaint on the same matter.
Id. at �1614.301(a).
The record shows that prior to the filing of the instant complaint
a grievance was filed on the same matter at issue in the instant
complaint. The agency has failed to include a copy of the negotiated
agreement in the record. It is the Commission's policy to remand any
dismissal of an allegation where the agency does not include a copy of
the relevant portion of the negotiated agreement in the record such that
the Commission can determine whether the negotiated grievance procedure
falls within the coverage of �1614.301. See Westbrook v. Department of
Defense, EEOC Request No. 05910671 (Oct. 25, 1991). In this case, the
agency did not include the relevant portion of the negotiated agreement
that shows whether employees have the right to file grievances alleging
discrimination. Therefore, the Commission shall remand the matter to
the agency so that the agency can supplement the record with the relevant
portion of the negotiated agreement. See id.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
Copies of complaints and decisions concerning those complaints which
state the same claim as allegation 1.
A copy of the relevant portion of the negotiated agreement showing whether
appellant had the right to raise allegations of discriminatory treatment
under the negotiated grievance procedure.
Within 30 days of the date this decision becomes final, the agency
shall issue a new decision dismissing the complaint or issue a letter
to appellant accepting the complaint for investigation. The agency
shall submit a copy of the decision dismissing the complaint or a copy
of the letter to appellant accepting the complaint for investigation,
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 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations