04990024
09-10-1999
Petitioner, ) Petition No. 04990024
)
Albert W. Morton, )
Petitioner, ) Petition No. 04990024
) Appeal No. 01963821
v. ) Agency No. SSA-186-93
) Hearing No. 110-95-8385X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
DECISION
On January 4, 1999, petitioner filed a petition for enforcement of the
Order set forth in Morton v. Social Security Administration, EEOC Appeal
No. 01963821 (May 14, 1998). In the Order, the Commission directed the
agency to redress petitioner following a finding that agency officials
had discriminated against him based on his sex and race (Black) in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. This petition for enforcement is accepted pursuant
to the provisions of 29 C.F.R. �1614.503. The issue presented is whether
the record now establishes that the agency has complied with the Order.
In his complaint, petitioner alleged in pertinent part that he was
discriminated against when he was given a lower performance appraisal in
October 1992. After the agency accepted and investigated the complaint,
petitioner requested a hearing before an EEOC Administrative Judge
("AJ"). Thereafter, the AJ issued a recommended decision ("RD") finding
that petitioner was discriminatorily denied a rating for one of the
two performance elements at issue. The agency rejected this finding of
discrimination in its FAD. (The FAD adopted the RD in so far as it found
no discrimination with respect to certain other allegations.) Petitioner
timely appealed. In our decision on the appeal, the Commission found
that petitioner was discriminatorily denied a rating for Generic Job Task
(�GJT�) #80. To remedy petitioner for this discrimination, the agency
was ordered to: (1) revise the performance appraisal to include a rating
of �5" for GJT #80; (2) issue petitioner a monetary award (with interest)
for a sum comparable to that received by any other employee whose overall
performance rating was the same, or lower than, petitioner's revised
overall rating; (3) provide training to a specified management official;
(4) post copies of an attached notice in conspicuous places, including
all places where notices to employees are customarily posted, taking
reasonable steps to ensure that the notices were not altered, deface,
or covered by other material; and (5) submit a report of compliance.
In his instant petition for enforcement, petitioner states that the notice
posted in his section was inconspicuously posted and subsequently covered
by other material. Petitioner requests that the agency be directed to
post the notice in a conspicuous place and ensure that it is not covered
by other material.
After receipt of the petition, the agency sent a letter to petitioner,
dated January 21, 1999, stating that it had investigated petitioner's
claim and determined that the copy of the notice posted in his work area
had been covered by other materials. The agency asserted that corrective
action was taken and that the notice is now clearly displayed on a
bulletin board visible to anyone walking into the section. The agency
included a photograph of the bulletin board displaying the notice.
A copy of this letter was submitted to this Commission.
On the basis of this information, which the Commission notes was not
subsequently challenged by petitioner, the Commission finds that the
agency has fully complied with its Order and, consequently, that no
further compliance action is necessary.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
September 10, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat