01973380
05-12-2000
Angela S. Mobley, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Angela S. Mobley v. Social Security Administration
01973380
May 12, 2000
Angela S. Mobley, )
Complainant, )
)
v. ) Appeal No. 01973380
) Agency Nos. SSA-094-94
Kenneth S. Apfel, ) SSA-002-94
Commissioner, ) SSA-773-93
Social Security Administration, ) SSA-679-93
Agency. ) SSA-467-92
________________________________) SSA-379-92
DECISION
For the reasons that follow, the Commission sets aside two final agency
decisions dated November 15, 1996 (FAD-1), and January 27, 1997 (FAD-2),
an amended FAD, that dismissed complainant's complaints filed under
the above agency case numbers.<1> The Commission determines that the
agency has failed to meet its burden of providing an adequate record in
support of the FADs. Henry v. USPS, EEOC Request No. 05940897 (May 18,
1995), citing Gens v. Department of Defense, Defense Logistics Agency,
EEOC Request No. 05910837 (January 31, 1992); Hines v. USPS, EEOC Appeal
No. 01923566 (May 13, 1993) at note 9, citation omitted. In addition, EEO
Management Directive (MD) 110 (October 22, 1992) provides, inter alia,
that a "complaint file will be assembled in a suitable binder, have
a title page...and contain all documents pertinent to the complaint."
Id. Ch. 5, �VIII (A). We find the agency has failed to provide complete
files in the present matter, despite repeated efforts by the Commission
to obtain such documents.
We find, for the purposes of clarity and consistency, and by way of
background information, the following relevant facts: at the time that
these matters arose, complainant was a GS-4 Office Automation Clerk
(OAC) in the agency's Office of Hearings and Appeal (OHA), San Diego,
California; by letter dated October 3, 1996, an EEOC Administrative
Judge (AJ) assigned to hear complainant's EEO complaints, appears to
have issued a decision (AJD-1) remanding complainant's complaints to
the agency and granting the agency's July 3, 1996 <2> motion for a
decision on the record to dismiss complainant's EEO complaints for
the stated reasons that they were "moot, and/or untimely filed." The
agency case numbers were: SSA-094-94; 002-94; 379-92; and 467-92.<3>
No such motion, however, appears to have been appended to AJD-1 or
contained in the record transmitted to the Commission by the agency in
this matter. AJD-1 appears to have found that the Merit Systems Protection
Board (MSPB), on January 18, 1995, had dismissed an appeal by complainant,
through her representative, "for lack of jurisdiction after finding that
[complainant's] resignation from employment was voluntary." AJD-1 cited
MSPB's determination, in pertinent part, that complainant "�formally
withdrew her motion for compensatory damages, and her assertion that her
resignation was involuntary as a result of a long-standing patter [sic]
of harassment and discrimination by her supervisor." AJD-1 declared that
"[h]aving formally withdrawn her claims of discrimination before the
MSPB, [complainant] cannot reassert them now before the EEOC. (Citation
omitted.) A copy of the MSPB decision was also excluded from the present
record.
By letter dated December 3, 1996 (AJD-2), the AJ amended her previous
communication to include agency case numbers SSA-679-93 and 773-93;
EEOC hearing numbers 92-3820X and 93-3838X. In essence, there was no
substantive difference between AJD-1 and AJD-2 in terms of the AJ's
disposition of those matters contained therein beyond identification
of the docketing numbers involved. We find, however, that, in neither
correspondence, were specific issues identified.
We note that the Commission denied a petition by complainant for
review of the MSPB's final decision that complainant's resignation,
which she submitted on September 8, 1993, was voluntary and, therefore,
beyond MSPB's jurisdiction. Mobley v. Social Security Administration,
EEOC Petition No. 03950107 (August 8, 1995). In denying consideration,
the Commission noted its own prior holdings "that there is little point
in continuing to view the matter as a �mixed case' as defined by 29
C.F.R. [�]1614.302(a). The case will thus be considered a �non-mixed'
matter and processed accordingly."Id. (Citations omitted.) Thus, the
Commission administratively closed complainant's petition and notified
the parties that the agency was required to process complainant's claim
of discrimination as a "non-mixed" EEO matter in accordance with 64
Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. �1614.105 et seq.). The Commission
directed the agency to notify complainant "of her right to contact
an EEO Counselor within forty five days of receipt of this decision,
and to file an EEO complaint, subject to 29 C.F.R. [�]1614.107." Id.
The Commission further declared, inter alia, that "[t]he date on which
the [complainant] filed the appeal with the MSPB shall be deemed the
date of initial contact with the EEO Counselor." Id.
In the present case, subsequent to the issuance of the AJDs, the agency
issued its final decisions. We now turn to those two FADs.
FAD-1
In FAD-1, the agency identified the following bases of alleged
discrimination and issues:
SSA-094-94
Complainant was allegedly discriminated against on the bases of race
(Black) and reprisal<4> when:
(1) on August 24, 1993, complainant's request for 16 hours of leave
without pay (LWOP), for the period August 30 to September 22, 1993,
was denied; and
(2) on August 27, 1993, complainant was forced to resign from her
government employment, effective September 13, 1993.
SSA-002-94
Complainant was allegedly discriminated against on the bases of race
(Afro-American) and reprisal when:
(1) on June 1, 1993, complainant was prevented from making the Best
Qualified List (BQL) for the position of Hearing Assistant, GS-6, posted
under Vacancy Announcement Number (VAN) OHA-93-54;
(2) on June 16, 1993, complainant was denied cross-training for the
position of Hearing Assistant.
(3) on June 21, 1993, complainant was denied 640 hours of LWOP to
attend school;
(4) on July 12, 1993, complainant was harassed before her request
for LWOP was granted to permit her to attend to her terminally ill
mother-in-law; and
(5) on July 19, 1993, complainant was harassed before her request for
extension of LWOP was granted.[<5>]
SSA-467-92
Complainant was allegedly discriminated against based on race (Black)
and reprisal when:
(1) on March 23, 1992, complainant became aware that the hiring freeze
was lifted to reassign and promote a co-worker, but not lifted to fill
the position of GS-986-04/05 Legal Processing Clerk (LPC), for which
complainant had applied under VAN OHA #92-008, on November 29, 1991; and
(2) on March 26, 1992, complainant's request to work compensatory time
was denied.
SSA-379-92
Complainant was allegedly discriminated against based on color (Black),
race (Black), and reprisal when:
(1) her request for participation in the leave sharing program was not
handled according to guidelines;
(2) on January 14, 1992, the HOM[<6>] denied a co-worker's offer to
donate 16 hours of leave to complainant;
(3) the HOM did not accept the medicals presented in support of
complainant's leave sharing request, and she told complainant she would
be put on LWOP effective January 23, 1992;
(4) the HOM called complainant asking permission for the Employee
Relations Personnel Specialist (ERPS) from the Regional Personnel Office
(RPO) to call complainant's physician to verify her illness before
approving her request for participation in the leave sharing program; and
(5) a memo requesting leave sharing was not presented appropriately
when it stated complainant was going through a "�personal emergency'"
rather than a "�personal health emergency.'"
FAD-1 dismissed all the aforesaid complaints for mootness, pursuant to 64
Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.107(a)(5)) FAD-1 also dismissed
complainant's claim of involuntary resignation. FAD-1 stated, in relevant
part, that complainant had "voluntarily resigned on September 10, 1993."
FAD-1 also dismissed this issue, under 64 Fed. Reg. 37,644, 37656 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(4)), for the stated reason that the issue of complainant's
resignation "was decided before the MSPB."
The agency has offered no evidence as to when complainant received
FAD-1. On March 12, 1997, complainant filed an appeal with the Commission.
Neither the agency nor complainant raised new contentions on appeal,
and the subject of complainant's appeal is not entirely clear.
On appeal, submitted on EEOC Form 573, complainant indicated she
received a FAD on February 15, 1997, which would make her appeal of
FAD-2 (discussed below) timely, in accordance with 64 Fed. Reg. 37,644,
37659 (1999) (to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402(a)). Attached to her appeal were FAD-1
and FAD-2. In addition, on appeal, complainant referenced agency case
numbers SSA-094-94; 002-94; 773-93; 697-93; 467-92; and 379-92. The 1993
case numbers contained check marks; however, the ink of the check marks
did not match that of the ink on the remainder of complainant's appeal,
to suggest that complainant was attempting to limit her appeal to that
of FAD-2. In addition, we find that, because FAD-2 purported to amend
FAD-1, we find complainant's timely appeal of FAD-2 to also constitute
a timely appeal of FAD-1. We now turn to FAD-2.
FAD-2
FAD-2 dismissed for mootness complainant's complaints under agency case
numbers SSA-773-93 and SSA-679-93,<7> for the reasons set forth in FAD-1
and based on AJD-2. FAD-2 identified race (Black) and reprisal as
the bases of discrimination and the following issues in complainant's
dismissed complaints:
SSA-773-93
(1) management refused to respond to complainant's March 27, 1993 request
for the results of a "�meet and deal'"<8> interview which she had on
January 8, 1993;
(2) on May 13, 1993, complainant was denied an opportunity to work
overtime; and
(3) on May 17, 1993, complainant was prevented from obtaining the position
of Legal Processing Clerk (LPC) when it was filled noncompetitively.
SSA-679-93
(1) on October 6, 1992, complainant received a rating of "Excellent"
instead of "Outstanding" on her performance appraisal (PA) for the period
of June 1, 1992, through September 30, 1992; and
(2) on March 8, 1992, complainant was falsely accused by the Office
Manager of talking aloud and disturbing others.
With regard to both FADs. as we have previously found, the agency has
failed to meet its burden of providing an adequate record despite
repeated requests by the Commission. We find that the Commission
requested complaint files from the agency on at least three (3) separate
occasions: July 15, 1998, February 9, 1999, and, most recently, on April
26, 1999. Accordingly, it is the decision of the Commission to VACATE
FAD-1 and FAD-2 and REMAND each of complainant's six (6) complaints
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of complainant's complaints. The parties
are further advised that the Commission may draw an adverse inference
in the event the agency fails to comply with the Commission's ORDER set
forth below. Sampson v. Department of Justice, EEOC Request No. 05960435
(August 13, 1998); 64 Fed. Reg. 37,644, 37657 (1999) (to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.109(d)(3)(i)).
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
(1) The agency shall obtain and produce, with copies to the Commission,
complainant, and her representative (if any), complete and true copies of
the following agency case files docketed as complaint numbers: SSA-094-94;
SSA-002-94; SSA-773-93; SSA-679-93; SSA-467-92; and SSA-379-92.
(2) The agency shall prepare and organize all requested complaint files
in accordance with applicable case law and MD-110 as described more
fully in the present decision, and shall identify all abbreviations.
(3) The agency shall consolidate all complaint files under one number,
in accordance with 64 Fed. Reg. 37,644, 37661 (1999) (to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.606),
and shall renumber each of the nineteen (19) claims identified in FAD-1
and FAD-2 in numerical sequence, i.e., (1) through (19), identifying in
clusters the bases of discrimination, e.g., (1) through (3): race (Black),
and reprisal. In the event the agency is considering complainant's
alleged resignation on, September 10, 1993, as a separate issue from
that cited as claim (2), under SSA-094-94, the agency shall identify
complainant's September 10, 1993 resignation as claim (20). Otherwise,
on remand, the agency shall make clear that there is only one resignation
issue in this matter, as identified under claim (2), SSA-094-94.
(4) Thereafter, the agency shall take one of the following three (3)
actions:
(a) request assignment of an EEOC AJ to conduct an administrative
hearing on complainant's consolidated complaints, in accordance with 64
Fed. Reg. 37,644, 37657 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.109);
(b) issue an immediate FAD without a hearing, with appeal rights to the
Commission, in accordance with 64 Fed. Reg. 37,644, 37657 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.110), if so requested by complainant; or
(c) issue a FAD, with appeal rights to the Commission, dismissing
complainant's complaints, in accordance with 29 C.F.R. �1614.107.
(4) If the agency dismisses complainant's complaints, in whole or in
part, the agency shall identify with specificity the legal grounds for
dismissal, the facts giving rise to dismissal, and the evidence relied
upon; the agency shall provide true copies of all evidence relied upon,
including, but not limited to, MSPB decisions, and motions, pleadings,
and correspondence filed by the parties.
(5) The agency shall identify all dismissed claims and shall not dismiss
any claim de facto by omission.
(6) The agency shall request and complainant shall provide objective
evidence of compensatory damages and a link between those compensatory
damages and the alleged agency acts of discrimination, in accordance
with the Commission's decisions in Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993); and Mares v. Department of
the Treasury, EEOC Appeal No. 01962897 (October 20, 1998).
(6) All ORDERED actions, including the issuance of a final agency
decision, shall be completed within thirty (30) calendar days of the date
this decision becomes final. Evidence of compliance with all ORDERED
actions must be submitted to the Compliance Officer, as referenced below.
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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
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:
May 12, 2000
_____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On 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.
2AJD-1 initially identified the agency's motion as having been filed on
July 9, 1996.
3The EEOC hearing numbers were identified as follow: 340-96-3395X; 3133X;
3146X; and 3147X.
4Claims of race and reprisal discrimination are actionable under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
5SSA-002-94 was the subject of a prior Commission decision in Mobley
v. Department of Health and Human Services, EEOC Appeal No. 01942660
(July 8, 1994). In that decision, we found the agency had improperly
dismissed, for failure to state a claim, claims (4) and (5), which
claims we remanded for further processing along with claims (1)-(3),
which the agency had accepted for investigation. Id. We also found
the agency had failed to address complainant's claim for compensatory
damages. Id. The Social Security Administration began processing its
own EEO complaints, as a separate agency from the Department of Health
and Human Services, effective March 1, 1995. Mobley v. Social Security
Administration, EEOC Petition No. 03950107 (August 8, 1995) at n.1.
6We infer from the available record that "HOM" refers to "Hearing Office
Manager."
7The EEOC hearing numbers were identified as 340-92-3820X and
340-93-3838X.
8The reference is not entirely clear. It appears from the available
record that a "meet and deal" interview was a "panel interview" that was
a prerequisite for a certification for a position for which complainant
had applied. The position, Service Representative, was, purportedly,
within the agency but not in OHA.