Dolores Lambert, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05990820 (E.E.O.C. Nov. 8, 1999)

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