01994224
01-12-2000
Florence D. Black, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Florence D. Black, )
Complainant, )
)
v. ) Appeal No. 01994224
) Agency No. 96-0025-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
____________________________________)
DECISION
Complainant filed the instant appeal from the agency's decision dated
March 30, 1999, dismissing a portion of the complaint for failure to
timely contact an EEO Counselor and for raising a matter that has not been
brought to the attention of an EEO Counselor (and is not like or related
to a matter that has been brought to the attention of an EEO Counselor)
pursuant to the regulation now set forth at 64 Fed. Reg. 37,644, 37656 (to
be codified as and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).<1>
Although direct appeals of decisions partially dismissing a complaint
are no longer permissible under the regulations revised on November
9, 1999, Commission records show that the remainder of the complaint
was the subject of a Commission decision, Black v. Social Security
Administration, EEOC Appeal No. 01974987 (May 13, 1999), finding no
discrimination. Therefore, we shall consider the instant appeal because
there are no remaining claims from the instant complaint pending anywhere
in the administrative EEO process.
The Commission finds that the agency's decision dated March 30, 1999,
dismissing claims 3 and 4 from complainant's complaint is proper pursuant
to 29 C.F.R. � 1614.107(a)(2). Complainant clarified claims 3 and
4 pursuant to the Commission's decision in Black v. Social Security
Administration, EEOC Appeal No. 01963809 (Mar. 14, 1997), request for
reconsideration denied, EEOC Request No. 05970660 (Feb. 11, 1999).
The Commission finds that claim 3, regarding non-selection for (VAN)
LC4-OHA-100, was untimely raised with an EEO Counselor. Complainant
initially contacted an EEO Counselor on June 8, 1995 regarding claim 3.
Complainant has failed to show that any non-selection at issue in claim
3 occurred 45 days or less prior to June 8, 1995. The Commission finds
that claim 4 (appraisal lowered) was properly dismissed for raising a
matter that has not been brought to the attention of an EEO Counselor
and is not like or related to a matter that has been brought to the
attention of an EEO Counselor.
The agency's decision dismissing claims 3 and 4 from the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (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:
Jan. 12, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ 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.