0120151766
04-28-2017
Issac K.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Issac K.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151766
Agency No. DEN-14-0633-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 11, 2015, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former applicant for employment with the Agency. On October 3, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity.
Complainant previously filed a July 22, 2008, formal complaint alleging that the Agency discriminated against him based on age and reprisal for prior EEO activity by precluding him from applying for the position of GS-7 Claims Representative in September 2006 and July 2007 and the position of GS-5/8 Service Representative in July 2007 and September 2007. At the conclusion of the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued a decision finding that Complainant did not establish his claim of age discrimination but did establish that the Agency engaged in reprisal with respect to the July 2007 Claims Representative position and the July and September 2007 Service Representative positions. The AJ ordered, in relevant part, that the Agency appoint Complainant retroactively to either a GS-7 Claims Representative position or a GS-7 Service Representative position with back pay and benefits.
The Agency issued a final order fully implementing the AJ's decision, and Complainant appealed the final order to this Commission. On appeal, Complainant argued, among other things, that the AJ erroneously ordered the Agency to appoint Petitioner to "either" the GS-7 Claims Representative or the GS-7 Service Representative position. He asserted that the Agency might attempt to minimize its back-pay liability by appointing him to the Service Representative position, which had less promotion potential than the Claims Representative position had. In the appellate decision, the Commission modified the ordered remedies to clarify that Complainant could choose retroactive placement in either the Claims Representative position or the Service Representative position. We reiterated the other remedies, including back pay and benefits, that the AJ ordered. See EEOC Appeal No. 0120112493 (Sept. 23, 2013).
The parties filed petitions for clarification and enforcement of the appellate decision. In a July 3, 2014, decision, the Commission noted that the Agency had offered Complainant retroactive appointment to the Claims Representative position and that he had declined the offer. We also noted that the Agency must provide Complainant with all the pay and benefits that he would have received from July 8, 2007, until the date that he declined the Agency's offer of employment. We ordered the Agency to calculate and contribute its share of retirement contributions to Complainant's Civil Service Retirement System (CSRS) and Social Security accounts. We also ordered the Agency to calculate Complainant's Social Security taxes and share of retirement contributions to his CSRS account, to deduct the amounts from Complainant's back pay, and to contribute the monies to Complainant's accounts. We noted that Complainant retired from federal employment effective June 1, 2008. We stated that, to the extent that Complainant and his former federal employer contributed their respective shares to his retirement and Social Security accounts for the period July 8, 2007, to June 1, 2008, we did not direct the parties to contribute to the accounts. In addition, we ordered the Agency to notify the Office of Personnel Management and the Social Security Administration of Complainant's appointment to the GS-7 Claims Representative position, for the period from July 8, 2007, to the date that he declined the offer of the position, for the purposes of calculating Petitioner's service credit and retirement benefits. See EEOC Petition No. 0420140005 (July 3, 2014).
Complainant subsequently filed another petition for enforcement. He requested, among other things, that the Commission order the Agency to contribute the Agency's share of Old Age, Survivors, and Disability (OASDI) taxes to the Social Security trust fund; to bill Complainant for his share of OASDI taxes; to reset Complainant's Social Security retirement date as August 13, 2011; and to recalculate his Social Security annuity. Complainant's petition is currently pending before this Commission. See EEOC Petition No. 0420150005.
In the meantime, Complainant filed the instant complaint. He alleged that the Agency retaliated against him for prior EEO activity by refusing to comply with an EEOC order. In that regard, Complainant alleged that the Agency "refus[ed] to provide [him] with the 'benefits' ordered by the EEOC" and "refus[ed] to implement service credit for Social Security benefits purposes."
On March 11, 2015, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(8) on the ground that it alleged dissatisfaction with the processing of a previously filed complaint. The Agency concluded that Complainant was not raising a new claim of discrimination but, instead, was alleging that the Agency had not properly implemented the Commission's order in EEOC Petition No. 0420140005. The Agency also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(5). In that regard, the Agency listed the relief that it had provided to Complainant, found that no further relief was available, and concluded that Complainant's claim was moot.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erroneously dismissed his complaint. He asserts that he has raised a new claim of retaliation and that he "is seeking all legal and equitable remedies that are not otherwise available under the pending" petition for enforcement. According to Complainant, the Agency's "persistent refusal, over the last four (4) years, 'to give the benefits ordered by the EEOC' constitutes clear and convincing evidence of the [Agency's] retaliation continuing after it was specifically enjoined."
Complainant also argues that the complaint is not moot. He asserts that the Agency has "flouted the Commission's injunction against further retaliation" and that there is a reasonable expectation that retaliation will continue.
ANALYSIS AND FINDINGS
Commission Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint that "alleges dissatisfaction with the processing of a previously filed complaint." Complaints about the processing of a previously filed complaint "should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chap. 5, � III.F (Aug. 5, 2015). Where a complainant's concerns have not been resolved informally with the agency, the complainant may raise the concerns to an EEOC Administrative Judge if the complainant has requested a hearing or to the EEOC's Office of Federal Operations on appeal. Id. � IV.D.
In this case, although Complainant argues that he is raising a new claim of retaliation, his complaint clearly alleges dissatisfaction with the Agency's implementation of the Commission's orders concerning his previous complaint. Complainant's claims that the Agency has not complied with the Commission's orders are being considered in connection with EEOC Petition No. 0420150005. We find, therefore, that the Agency properly dismissed the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(8). See Charlyn B. v. Dep't of the Navy, EEOC Appeal No. 0120162541 (Jan. 11, 2017) (appropriate remedy for alleged failure to comply with Commission order is to seek enforcement of order, not to file new complaint); Wagner v. Dep't of Veterans Affairs, EEOC Appeal No. 01A62687 (July 26, 2006) (complaint alleging that agency engaged in reprisal when it did not comply with EEOC order properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8); proper forum for raising claim of failure to comply with an EEOC order is with the EEOC itself).
Having determined that the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(8), we need not determine whether Complainant's claim is moot.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/28/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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