Andrea R. Ramsey, et al., <1> Complainants,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
05990513 (E.E.O.C. Jul. 13, 2000)

05990513

07-13-2000

Andrea R. Ramsey, et al., Complainants, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Andrea R. Ramsey, et al. v. Social Security Administration

05990513-520

July 13, 2000

Andrea R. Ramsey, et al., <1> )

Complainants, )

)

v. ) Request Nos. 05990513-520

) Appeal Nos. 01981123, 1124, 1126-1131

) Agency Nos. 95-0453-460 (SSA)

Kenneth S. Apfel, ) Hearing Nos. 340-96-3907-3915

Commissioner, )

Social Security Administration, )

Agency. )

________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On March 15, 1999, Audrey R. Ramsey, et al. (complainants) initiated

requests to the Equal Employment Opportunity Commission (EEOC) to

reconsider eight decisions involving the Social Security Agency, EEOC

Appeal No. 01981123, 1124, 1126-1131 (February 9, 1999).<2> In 64

Fed. Reg. 37644, 37659 (1999) (to be codified and hereinafter referred to

as 29 C.F.R. � 1614.405), EEOC regulations provide that the Commissioners

may, in their discretion, reconsider any previous decision where the

party demonstrates that: (1) the previous decision involved clearly

erroneous interpretation of material fact or law; or (2) the decision

will have a substantial impact on the policies, practices, or operation

of the agency. 29 C.F.R. � 1614.405(b).

The previous decisions upheld an administrative judge's (AJ) findings of

discrimination based on race and color with respect to the non-selection

of complainants to the position of Claims Representative. However,

the previous decisions found that none of the complainants at issue

herein would have received the position in question because of they

were not fluent in Spanish as required by the position.<3> The previous

decision noted that the agency, rather than posting the vacancy, gave the

position to one employee who was not qualified for the position. Among

the relief ordered was that the agency was to give the complainants the

opportunity to apply for any and all promotions in the agency, provide

copies of vacancy announcements, post vacancy announcements, and provide

assistance in applying for promotions. The agency was also enjoined from

ever again engaging in the concealment of vacancy announcements. The

previous decisions noted that complainants were entitled to compensatory

damages and as such remanded the matter to the agency for a supplemental

investigation on the matter. In the requests for reconsideration, all of

the complainants seek to be given priority consideration. The Commission

notes that none of the complainants would have received the position

and the agency has been instructed to give the appropriate weight to

experience in evaluating applications. As such, the Commission finds no

reason to change that portion of the Order in the previous decisions.

Complainants' arguments fail to meet the criteria for review and are

denied.

The Commission notes that the agency was directed to conduct a

supplementary investigation pertaining to the complainants' entitlements

to compensatory damages. Complainant has sixty (60) days to submit

additional evidence to the agency in support of her claim for compensatory

damages. The agency is to complete its supplementary investigation within

30 days from receipt of complainant's additional evidence in support of

her claim for compensatory damages.

Accordingly, complainants' requests for reconsideration are denied. The

decisions in EEOC Appeal Nos. 01981123, 01981124, and 01981126-1131

remain the Commission's final decisions in this manner. There is no

further right of administrative appeal from a decision of the Commission

on these requests for reconsideration.

ORDER

The agency is ORDERED to take the following remedial action:

Complainants shall be given the opportunity to apply for any and all

promotions in their agency;

Complainants shall be given copies of all vacancy announcements for

advancement from their jobs as a Service Representative for the next

two years;

All vacancy announcements shall be posted in conspicuous places

accessible to all Service Representatives in the Inglewood office;

Complainants shall be offered training and assistance in responding

to vacancy announcements;

The agency is enjoined from ever again engaging in the concealment

of vacancy announcements for career positions, whatever their source,

and is ordered to distribute and post such announcements whenever the

issuing authority permits it;

The Inglewood office is directed to give weight to experience that

is called for in any job announcement and not unilaterally ignore its

value in favor of formal education; and

The agency shall post at its Inglewood, California, office copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes

final, and shall remain posted for sixty (60) consecutive days, in

conspicuous places, including all places where notices to employees

are customarily posted. The agency shall take reasonable steps to

ensure that said notices are not altered, defaced, or covered by any

other material. The original signed notice is to be submitted to the

Compliance Officer at the address cited in the paragraph entitled

"Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

The agency shall provide immediate training to the agency

officials involved in this matter concerning their obligations and

responsibilities under the Federal employment discrimination laws.

The agency shall conduct a supplementary investigation pertaining to

complainants' entitlement to compensatory damages incurred as a result

of the agency's discriminatory actions. See Feris v. Environmental

Protection Agency, EEOC Appeal No. 01934828 (August 10, 1995),

request to reconsider denied, EEOC Request No. 05950936 (July 19,

1996); Rivera v. Dept. of the Navy, EEOC Appeal No. 01934157 (July 22,

1994); Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (January 5,

1993). See also, Cobey Turner v. Dept. of the Interior, EEOC Appeal

Nos. 01956390 and 01960518 (April 27, 1998); Jackson v. United States

Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request

for reconsideration denied, EEOC Request No. 05930306 (February 1,

1993). The agency shall afford complainants sixty days to submit

additional evidence in support of their claim for compensatory damages.

Within thirty (30) days of its receipt of complainants' evidence,

the agency shall issue a final decision determining each complainants'

entitlement to compensatory damages, together with appropriate appeal

rights.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (Z1199)

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:

July 13, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated which found

that a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment. The Social Security Administration,

Inglewood, California reaffirms its commitment to comply with these

statutory provisions.

The Inglewood, California, office supports and will comply with such

Federal law and will not take action against individuals because they

have exercised their rights under law.

The Inglewood, California office was found to have discriminated against

the individuals affected by the Commission's finding on the bases of

her their race and color when they were not given the opportunity to

apply for a Claims Representative position. The Commission has ordered

that complainants be given the opportunity to apply for all future

vacancies, that all vacancy announcements be posted and not concealed

from employees, and that experience not be unilaterally ignored in

favor of formal education when permitted by a vacancy announcement. The

Inglewood, California office will ensure that officials responsible for

personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws

and will not retaliate against employees who file EEO complaints.

The Inglewood, California, office will not in any manner restrain,

interfere, coerce, or retaliate against any individual who exercises his

or her right to oppose practices made unlawful by, or who participates

in proceedings pursuant to, Federal equal employment opportunity law.

_______________________________

Date Posted: ____________________

Posting Expires: ________________

1The instant decision covers the nearly identical requests for

reconsideration of nine complainants. The complainants are Andrea

R. Ramsey (Appeal No. 01981129, Request No. 05990513), Virginia

D. Madrigal (Appeal No. 01981123, Request No. 05990514), Stephanie

Murray (Appeal No. 01981127, Request No. 05990515), Eloise W. Carter

(Appeal No. 01981131, Request No. 05990516), Beverly J. Foster (Appeal

No. 01981130, Request No. 05990517), Carla J. Hayes-Cooper (Appeal

No. 01981128, Request No. 05990518), Diane Goode (Appeal No. 01981124,

Request No. 05990519), and Krystal L. Fletcher (Appeal No. 01981126,

Request No. 05990520). A decision on the request filed by Alma K. Walker

is being issued separately.

2On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3A tenth complainant, who had the requisite language skills, was found

to be the best qualified for the position. See Waters v. SSA, Appeal

No. 01981122 (February 9, 1999).