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.