Gary Klemz, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01a03757 (E.E.O.C. Aug. 8, 2000)

01a03757

08-08-2000

Gary Klemz, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Gary Klemz v. Social Security Administration

01A03757

August 8, 2000

.

Gary Klemz,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A03757

DECISION

Complainant filed a timely appeal with this Commission from an agency

letter dated April 11, 2000, that declined complainant's request for

EEO counseling. The Commission accepts the appeal in accordance with

64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �

1614.405).<1>

According to the record, complainant made numerous requests for EEO

counseling regarding his claim of sexual harassment and harassment based

on reprisal, concerning a hostile work environment in conjunction with

his duties as a union official. The agency responded that it did not

have jurisdiction over the matter because complainant was a full time

union official and his contentions concerned internal union business.

In a letter dated April 11, 2000, the agency reiterated its denial of

EEO counseling.

The Commission first notes that the agency did not issue a final decision

in this case. However, in a letter dated April 11, 2000, discussed

above, the agency declined to provide complainant with EEO counseling,

determining that the matter which complainant wished to pursue related to

union matters. The Commission will construe this April 11, 2000 letter

as a final decision, timely appealed to the Commission.

After review of the record, we find that the agency violated 64

Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred to

as 29 C.F.R. � 1614.105) when it refused to provide complainant with

EEO counseling. The agency does not have the discretion to refuse to

provide EEO counseling. Rather, the appropriate time to determine whether

complainant has standing to file an EEO complaint is after a formal EEO

complaint has been filed; Commission regulations provide a basis for

the dismissal of a complaint that fails to state an actionable claim at

64 Fed. Reg. 37,656 (1999) (to be codified at 29 C.F.R. � 1614.107(a)),

as well as a mechanism for Commission review of the agency's decision

at 64 Fed. Reg. 37,659 (1999) (to be codified at 29 C.F.R. � 1614.401).

See also Briand v. U.S. Postal Service, EEOC Appeal No. 01950691 (June

22, 1995).

Accordingly, the Commission determines that the agency's decision to

decline to afford complainant pre-complaint processing was improper

and is VACATED. The complaint is REMANDED to the agency for further

processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to provide complainant with the opportunity to

obtain EEO counseling. Within thirty (30) calendar days of the date that

this decision becomes final, the agency shall notify complainant that he

has thirty (30) calendar days from receipt of the agency's notification

to contact an EEO Counselor. If complainant contacts an EEO Counselor,

counseling shall proceed in accordance with the provisions of 29

C.F.R. �1614.105 et seq.

A copy of the agency notice providing complainant the opportunity to

obtain EEO counseling, as well as proof of complainant's receipt thereof,

must be submitted to the Compliance Officer as referenced below

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).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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, Director

Office of Federal Operations

August 8, 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.