05990223
07-28-2000
Elbert Brooks, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Elbert Brooks v. Social Security Administration
05990223
July 28, 2000
.
Elbert Brooks,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Request No. 05990223
Request No. 05970229
Appeal No. 01961036
Agency No. SSA-199-95
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Elbert
Brooks v. Social Security Administration, EEOC Appeal No. 05970229
(October 8, 1998).<1> In that decision, the Commission remanded
complainant's initial two claims to the agency for continued processing,
and found that regarding the third of complainant's claims, the agency
breached the settlement agreement it entered into with complainant.
As a remedy, the Commission ordered the agency to offer complainant
the opportunity to enroll in several courses which were set forth in
the settlement agreement, at the agency's expense. As the Commission
initially addressed the merits of complainant's allegation of settlement
breach in its decision granting complainant's request to reconsider, the
Commission determined that it would afford the parties reconsideration
rights regarding this issue. The agency then filed its request to have
the Commission reconsider the breach of settlement agreement issue.
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting
party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
In its request to reconsider, the agency claims that complainant was
offered all of the training specified in the settlement agreement, but he
refused to complete this training and thus the settlement agreement was
not breached. The agency further asserts that some or all of the courses
are no longer available. Complainant claims that he was not provided a
timely schedule of training sessions offered by the agency, and should
have been contacted to renegotiate any substitution of training classes.
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. � 1614.405(b), and it is
the decision of the Commission to deny the request. However, in order
to clarify the decision in EEOC Appeal No. 05970229 and facilitate the
parties' compliance with the terms of the settlement agreement, within
thirty (30) days of the issuance of this decision, the agency shall
provide a schedule of relevant training courses offered by the agency
or a community college within the next six months which complainant can
choose from to substitute for the WordPerfect Survival, Skills in Reading
and Writing, Keyboarding and Telephone Courtesy and Customer Service
courses specified in the settlement agreement which he has either not
been offered or has not received. Within thirty (30) days of receipt
of the schedule, complainant shall further comply with the terms of the
settlement agreement by choosing up to four (4) training courses from
the schedule (enrolling in college if necessary to complete the relevant
training courses) and completing training forms for verification when
the courses are completed. The parties shall engage in an interactive
process to agree on a suitable schedule of training courses, and shall
not unilaterally deviate from the terms of the settlement agreement or
this decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) days of the receipt of this decision, the agency shall
provide complainant with a schedule of relevant training courses offered
by the agency or local community college within the next six months which
complainant can choose from. Complainant shall have thirty (30) days
from receipt of the schedule to choose up to four (4) training courses
to complete the terms agreed upon in the settlement agreement.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.