0120093580
02-04-2010
Jacqueline L. Haynes, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jacqueline L. Haynes,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093580
Agency No. ATL090502SSA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 20, 2009, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely
EEO Counselor contact.
In her complaint, complainant alleged that she was subjected to hostile
workplace discrimination on the bases of race (Black) and reprisal
for prior protected EEO activity under Title VII with respect to the
following: 1) Complainant heard her first line supervisor tell a fellow
co-worker, "If you get any Blacker, you'll have to sit at the back of
the bus." 2) When awards are issued, only White employees are given
quality step increases. 3) Senior Black employees are not allowed to
conduct training, while White employees with limited work experience
are allowed to conduct training. 4) Black employees receive a maximum
performance rating of three, while White employees receive a maximum
performance rating of five. 5) Although complainant has a bachelor's
degree, at the discretion of the selecting official she was hired as a
GS-04, despite the fact that the job announcement stated any selectee
with a bachelor's degree automatically qualified for a GS-5.
In its final decision, the agency stated that all of complainant's
claims, detailed above, preceded her subsequent termination on
August 12, 2008, but complainant did not initiate contact with an EEO
Counselor until May 1, 2009, which is well beyond the forty-five (45)
day limitation period.1 The agency also stated that in complainant's
prior discrimination complaint, Formal Complaint ATL-09-0854, complainant
challenged her termination and included the same background and/or
generalized information regarding workplace matters as alleged claims
in the current complaint, ATL-09-0502. The agency further stated that
it sent an acceptance letter, dated February 4, 2009, clearly providing
complainant an opportunity to clarify her previous claims. However,
the agency noted that complainant failed to respond.
On appeal, complainant claims that the agency had sought clarification
in her earlier claim involving her termination, but that various, agency
EEO offices were uncertain as to whether her additional claims would be
investigated as background for the termination claim or as a separate
complaint. Complainant maintains that the agency failed to notify her
of how it would proceed, that is, how it would investigate/resolve all
of her claims outlined in both formal complaints.
.
Because the agency acknowledges and the record reflects that the issues
in this subject appeal were presented during pre-complaint processing
of complainant's initial complaint, ATL-09-0854, we find that that it
is appropriate for the agency to investigate these unresolved claims.
Further, it is evident from the record presented on appeal, that the
agency mishandled the processing of these claims. Therefore, the agency's
dismissal of complainant's complaint for untimely EEO Counselor contact
was improper.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108.2 The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
February 4, 2010
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 The record discloses that complainant was terminated for falsely
presenting herself as a representative of the Macon ODAR Social Security
Administration entitled to receive medical records in connection with
a disability case.
2 If possible, the agency is advised to process these remanded claims
with complainant's initial complaint, ATL-09-0854.
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0120093580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093580