01981149_r
12-09-1998
Delores Lambert, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Delores Lambert, )
Appellant, )
)
v. ) Appeal No. 01981149
) Agency No. 97-0492-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) received by her on November 4, 1997, pertaining
to her complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In her complaint, appellant alleged that she was subjected to
discrimination on the bases of physical disability (unspecified) and in
reprisal for prior EEO activity when:
On May 16, 1997, the Director of the Office of Regional Program and
Integrity Reviews at appellant's work location ratified the denial of
appellant's reasonable accommodation request by refusing to specify
in his letter what was required to grant appellant's reasonable
accommodation request;
By a letter dated May 5, 1997, the Associate Commissioner for the
Office of Program and Integrity Reviews (ORPIR Associate Commissioner)
would not intervene to provide appellant assistance in remedying the
discriminatory practices directed toward her;
By a letter dated May 29, 1997, the Deputy Director of the Disability
Quality Branch (DQB Deputy Director) denied appellant's request for
official time for attorney consultation on May 20, 1997;
Appellant was charged 1/4 hour of leave, rather than having her tardiness
excused, when she was late on January 17, 1997;
Management continued to insist that appellant take her lunch period
within a fixed period of hours; and
Management's continuing use of employees as agency representatives across
component lines, and allowing them official time and expenses to do so,
while denying this to complainant's reps, is violation of case law,
denial of due process, and disparate treatment for the complainants.
On October 10, 1997, the agency issued a final decision dismissing
allegations (1), (2), (3), (5), and (6), pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for stating the same claims that were pending
before or decided by the agency or Commission in prior complaints;
allegation (4), pursuant to 29 C.F.R. �1614.107(b), for untimely EEO
Counselor contact; and allegation (6), in the alternative, pursuant to
29 C.F.R. �1614.107(a), for failure to state a claim. With regard to
allegation (4), the agency determined that appellant was aware that her
tardiness was not excused by memorandum dated January 23, 1997, and by
the fact that she was charged 1/4 hour of leave, but did not initiate
contact with an EEO Counselor until June 3, 1997, beyond the forty-five
(45) day limitation period. In justifying its dismissal of allegation
(6), the agency found that appellant failed to articulate a personal loss
or harm affecting the terms, conditions or privileges of her employment,
and, therefore, was not aggrieved.
Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
After careful review of the record, we find that dismissal of allegations
(2) and (6) was proper for failure to state a claim. In allegation
(2), appellant alleged that she was subject to discrimination when
the ORPIR Associate Commissioner would not intervene to provide her
assistance in remedying the discriminatory practices directed toward her.
Management's failure to take remedial measures when confronted with
allegations of discrimination does not represent a separate processable
claim under 29 C.F.R. �1614, but rather effects the agency's liability
if discrimination is ultimately found. Consequently, allegation (2)
was properly dismissed for failure to state a claim.
With regard to allegation (6), we find that appellant failed to allege
personal harm to the terms, conditions or privileges of her employment.
Instead, appellant makes a generalized assertion of impropriety,
without identifying how she, individually, was harmed. Accordingly,
we find that allegation (6) was properly dismissed pursuant to 29
C.F.R. �1614.107(a).<1>
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, the record shows that by memorandum dated January 23,
1997, appellant was notified that her tardiness would not be excused and
that she would instead be required to use her leave to cover it. We find,
therefore, that appellant had, or should have had a reasonable suspicion
of discrimination on that date. As appellant offered no justification
sufficient to extend the applicable time period, we find that the agency
properly dismissed allegation (4) for untimely EEO Counselor contact.
Same Claim Pending Before or Decided by the Agency or Commission
After a careful review of the record, we find that dismissal of
allegations (1), (3), and (5) was improper. The agency failed to
include in the record any documentation or other evidence indicating the
allegations raised in appellant's prior complaints. Thus, the agency
failed to substantiate the bases for its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the agency's decision to dismiss allegations (2), (4),
and (6) is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss allegations (1), (3), and (5) was improper and
is hereby REVERSED. Those allegations are REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 acknowledgment 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. �1614.604(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 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. 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:
Dec. 9, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Since we are affirming the agency's
dismissal of allegation (6) on the grounds of failure to state a
claim, we will not address the agency's alternative grounds for
dismissal, i.e., that it states the same claim appellant raised
in a prior complaint.