Elbert Brooks, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 28, 2000
05990223 (E.E.O.C. Jul. 28, 2000)

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.