Carmen Aportela, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionDec 6, 2000
01990104 (E.E.O.C. Dec. 6, 2000)

01990104

12-06-2000

Carmen Aportela, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Carmen Aportela v. Social Security Administration

01990104

December 6, 2000

.

Carmen Aportela,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01990104

Agency No. 98-0604-SSA

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1>

In a complaint dated July 22, 1998, the complainant claims that the agency

retaliated against her for filing EEO complaints under Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. Specifically, complainant

claims that she contacted two high ranking agency management officials,

and requested that they intervene in the processing of her several

pending EEO complaints in order to settle these matters, asking that

she be accorded certain remedies.<2> Each official declined to do so

because the agency was still actively investigating the complaints.

On September 3, 1998, the agency issued a final decision. The agency

identified the matter raised in complainant's complaint in this fashion:

The agency Deputy Commissioner . . . failed to assist her in resolving

the complaints of discrimination she has filed against the Dallas Region.

As a result, she has been subjected to a continuing pattern of sexual

and nonsexual harassment and hostile work environment.

The agency then dismissed the complaint on the grounds of failure to state

a claim finding that complainant was not aggrieved when the identified

officials denied the request at issue. Alternatively, the agency also

dismissed the instant complaint finding that it addressed the same claims

raised in the referenced pending EEO complaints. Complainant now appeals

this determination.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission.

In this case, we find that the instant complaint is inextricably

intertwined with complainant's pending complaints because she was

attempting to settle those same pending complaints by requesting

assistance from the two named officials. Therefore, the denial of this

request does not state a separate claim, but is a matter to be addressed

in the processing of the pending complaints.

Accordingly we find that the agency properly dismissed the instant

complaint as being part of the �same claim� raised in the pending

complaints, and we AFFIRM that decision.<3>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 6, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.

2Both parties acknowledge that complainant filed these complaints and

that they raised claims of harassment and sexual harassment due to a

hostile work environment. Both parties also acknowledge that the agency

was actively investigating these complaints at the time the instant

matter arose.

3Because we affirm the agency's decision to dismiss the complaint for the

reason stated herein, we determine that it is not necessary to address

the agency's alternative grounds for dismissal.