05990820
11-08-1999
Dolores Lambert, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Dolores Lambert v. Social Security Administration
05990820
November 8, 1999
Dolores Lambert, )
Appellant, )
)
v. ) Request No. 05990820
) Appeal No. 01983931
Kenneth S. Apfel, ) Agency No. 98-0020-SSA
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On July 1, 1999, the Social Security Administration (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the
decision in Dolores Lambert v. Social Security Administration, EEOC
Appeal No. 01983931 (June 2, 1999). EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, the agency's
request is denied. However, the Commission exercises its discretion
and reconsiders the previous decision on its own motion.
ISSUES PRESENTED
The issues presented are as follows: (1) whether the agency properly
dismissed allegations 3 though 8 and 10 on the ground that they were
raised in prior complaints; (2) whether the denial of official time
for EEO preparation (allegations 3, 5, 6 and 10) should be investigated
as discrimination claims; and (3) whether the denials of time for union
representational duties (allegation 4) states a claim under 29 C.F.R. Part
1614.
BACKGROUND
The final agency decision, dated February 4, 1998, identified 10
allegations of discrimination and retaliation raised by the appellant's
October 8, 1997 complaint. The agency accepted allegations 1 and 9
for investigation. The agency dismissed allegation 2 for failure to
state a claim. The agency dismissed the remaining allegations on the
ground that they had been addressed by the agency is prior complaints
(agency complaint numbers 95-0215-SSA and 97-0018-SSA).
The previous decision affirmed the dismissal of allegation 2 for failure
to state a claim. The previous decision vacated the agency's dismissal
of allegations 3 - 8 and 10 and remanded the complaint to the agency to
supplement the record with the acceptance letters for the prior complaints
that purportedly contained the same claims. The previous decision also
ordered the agency to either accept the dismissed allegations or issue
a new final agency decision dismissing the allegations.
The agency requests reconsideration of the previous decision, contending
that the previous decision is of such exceptional nature as to have
substantial precedential implications and that it is sensitive in nature.
The agency also states that it would be more efficient for the agency
to supplement the record by submitting the required information with
its request, rather than to delay the matter any further. In support of
its request, the agency submits copies of the decisions referenced in the
final agency decision at issue in this request. The decisions demonstrate
that the agency accurately described the prior decisions on which it
had relied in the final agency decision at issue in this request.
The appellant did not file a response to the agency's request.
ANALYSIS AND FINDINGS
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny the agency's request. The agency
does not explain how the prior decision, which vacated the agency's
unsupported dismissals and remanded the complaint for supplementation
of the record, is exceptional.
However, the Commission exercises its discretion and reconsiders the
previous decision based on the agency's request submissions and the
content of allegations 3 - 8 and 10.
As a threshold matter, the Commission finds that the matters raised
in allegations 3 through 6 and 10 were not addressed in the in prior
complaints. Specifically, the prior complaints addressed similar
incidents which allegedly occurred two or more years prior to the
incidents at issue in this complaint. Moreover, allegations 7 and 8,
concerning the appellant's request for a computer monitor with a very high
refresh rate as reasonable accommodation, involve a new accommodation
request that was not the subject of allegation 9 in agency complaint
number 97-0215-SSA. Therefore, the Commission finds that the agency
erred when it dismissed allegations 3 - 8 and 10 on the grounds that
they were raised in prior complaints.
The Commission finds, however, that the agency should have dismissed
allegation 4, albeit on different grounds. Allegation 4 concerns the
denial of credit hour compensation for union representational work.
The Commission has held that such allegations fail to raise a claim of
employment discrimination. Elliot v. United States Postal Service, EEOC
Request No. 05960197 (November 13, 1997). Accordingly, the Commission
finds that the agency should have dismissed allegation 4 for failure to
state a claim under 29 C.F.R. Part 1614.
Allegations 3, 5, 6, and 10 concern denial of requests for official
time for EEO work. The Commission has held that EEO complainants have
a right to a reasonable amount of official time for processing their
own EEO complaints under Commission regulation, 29 C.F.R. �1614.605(b).
Edwards v. United States Postal Service, EEOC Request No. 05950708
(October 31, 1996). Thus, it is not relevant whether the agency's action
was motivated by reprisal against the appellant for his or her prior EEO
activity or by any other unlawful motive. Id. Accordingly, on remand
the agency should investigate to determine whether the appellant was
denied a reasonable amount of official time under 29 C.F.R. �1614.605(b).
If so, the agency should compensate the appellant for the official time
she was denied. If not, the agency should issue a new final agency
decision describing the record evidence and explaining its reasons for
denying or limiting the official time requests.
The Commission notes that allegations 5, 6 and 10 may concern denials
of official time for EEO representational duties. The agency is advised
that only the complainants, not representatives, have standing to raise
EEO official time claims. Lambert v. Social Security Administration,
EEOC Request No. 05970586 (October 8, 1998). If the agency finds on
remand that any of the appellant's requests for official time pertain
to the appellant's representational duties, the agency should dismiss
the allegations for failure to state a claim.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and
the request is hereby DENIED. The Commission, however, exercises its
discretion and reconsiders the previous decision on its own motion. The
decision in EEOC Appeal No. 01983931 (June 2, 1999) is hereby REVERSED.
The final agency decision is hereby MODIFIED and the complaint is remanded
to the agency for further processing in accordance with this decision
and the Order below. There is no further right of administrative appeal
from the decision of the Commission on this request for reconsideration.
ORDER
1. The agency is ORDERED to process the appellant's reasonable
accommodation claim (allegations 7 and 8) in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded claim 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.
2. The agency is ORDERED to investigate to determine whether the
appellant was denied a reasonable amount of official time under 29
C.F.R. �1614.605(b)(allegations 3, 5, 6, and 10). If so, the agency
should compensate the appellant for the official time she was denied.
If not, the agency should issue a new final agency decision describing
the record evidence and explaining its reasons for denying or limiting the
official time requests. If the agency finds that any of the appellant's
requests for official time pertain to the appellant's representational
duties, the agency should dismiss the allegations for failure to state
a claim. The agency shall fully comply with the terms of this e paragraph
within sixty (60) days of the date of this decision.
3. A copy of the agency's letter of acknowledgment to appellant, a copy
of the notice that transmits the investigative file and notice of rights,
and a copy of the agency's decision on the appellant's official time
requests 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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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. 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:
11/08/1999
_______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operaions