01980243
11-17-1998
Constance Boyer, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Constance Boyer v. Social Security Administration
01980243
November 17, 1998
Constance Boyer, )
Appellant, )
)
v. ) Appeal No. 01980243
) Agency No. 97-0482-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
The Commission finds that the agency's September 5, 1997 decision
dismissing a portion of appellant's complaint on the bases of failure
to state a claim and untimely EEO counselor contact is proper pursuant
to the provisions of EEOC Regulation 29 C.F.R.�1614.107(a) and (b).
A review of the record shows that appellant sought EEO counseling on April
15, 1997, alleging that she had been discriminated against on the bases
of race (Black), color (black) and reprisal for prior EEO activity when:
(1) on May 28, 1997, she was excluded from a unit meeting by her new
supervisor, with whose sister, a coworker, appellant had prior verbal
altercations; (2) on May 9, 1997, she was reassigned to a new supervisor,
with whose sister, a coworker, appellant had prior verbal altercations
(appellant believed that this coworker would negatively impact on her
ability to receive fair treatment from her new supervisor); (3) she was
not selected for the position of Supervisory Legal Clerk in 1993; and, (4)
she was not selected for the position of Hearing Assistant in 1994. In
its final decision, the agency accepted allegation (1) for investigation.
Allegation (2) was dismissed on the grounds of failure to state a claim
and allegations (3) and (4) were dismissed on the grounds of untimely EEO
counselor contact. On appeal, appellant contends that allegations (2),
(3) and (4) "are examples of ongoing discrimination ... I was trying to
illustrate how management has mistreated me throughout the years".
Regarding allegation(2), appellant claims that her new supervisor is the
brother of a coworker with whom she has had prior verbal altercations.
We find that appellant has shown a change in the conditions of her
employment: she has been reassigned to a new supervisor. Therefore,
she has been successful in raising a claim that she has allegedly
suffered a harm to one of the conditions of her employment. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). Accordingly, the agency's decision dismissing allegation (2)
was improper.
The Commission applies a "reasonable suspicion" standard to the triggering
date for determining the timeliness of the contact with an EEO counselor .
Cochran v. United States Postal Service, EEOC Request No. 05920399 (June
18, 1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle,
27 FEP Cases 1345 (D.D.C. 1982). The record shows that appellant
claims that she was not selected in 1993, and 1994, and that she has
been mistreated by the agency "for years". Nevertheless, she did
not seek EEO counseling until April 1997, well beyond the 45-day time
limit provided by EEOC Regulations. Accordingly, appellant's claim of
a continuing violation is not proper. The agency's decision dismissing
allegations (3) and (4) on the basis of untimely EEO counselor contact
was appropriate. Accordingly, the dismissal of allegations (3) and
(4) is AFFIRMED. However, the Commission hereby REVERSES the FAD's
dismissal of allegation (2) for failure to state a claim. Allegation (2)
is hereby REMANDED for further processing consistent with this decision
and applicable regulations. The parties are advised that this decision
is not a decision on the merits of appellant's complaint.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
November 17, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations