Randolph T.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

2019004245 (E.E.O.C. Aug. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Randolph T.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019004245

Hearing No. 480-2018-00694X

Agency No. SF-17-0307-SSA

DECISION

Complainant filed a purported appeal with the Equal Employment Opportunity Commission
(EEOC or Commission) concerning his complaint unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq.

Complainant filed a formal complaint alleging that the Agency subjected him to discrimination
on the bases of disability and reprisal and identified numerous claims. The Agency accepted six
claims, and Complainant requested a hearing before a Commission Administrative Judge (AJ).
On September 12, 2018, while this matter was pending before the AJ, Complainant filed a
Motion for Judicial Review: Possible Breach of the SSA Disability Class Action Settlement. In a
March 4, 2019 decision, the AJ issued an Order Denying Complainant’s Motion for Judicial
Review. On March 25, 2019, Complainant filed a Motion to Subsume The Above Named Case
Into The SSA Disability Class Action Breach of Settlement With OFO. In an Order dated March
25, 2019, the AJ denied Complainant’s Motion to Subsume, and warned Complainant’s
representative, “not to submit frivolous filings,” and, “that filing additional motions to subsume
will result in sanctions up to and including dismissal.”

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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Complainant requested reconsideration of the AJ’s denial of the Motion to Subsume and
requested sanctions against the Agency for failing to accommodate him. By Order filed on April
30, 2019, the AJ denied Complainant’s Motion to Subsume and request for sanctions. The AJ
again warned Complainant against the submission of, “frivolous filings that result in delay in the
process,” and that, “[i]f Complainant or his representative raise these issues again, as a sanction,
[AJ] will dismiss his hearing request and remand the complaint to the Agency for a final
decision.” It is from this Order to deny the Motion to Subsume that Complainant appeals.

Complainant’s purported appeal is premature because there is no final decision before the
Commission for consideration. The Commission considers final Agency decisions and does not
consider interlocutory appeals. Complainant is filing an appeal of the AJ’s interlocutory ruling to
the Commission. See Cecile T. v. Environmental Protection Agency, EEOC Appeal No.
0120161511 (December 20, 2016); Complainant v. United States Postal Service, EEOC Appeal
No. 0720130037 (March 9, 2015) (Commission's regulations do not provide for interlocutory
appeals); McGowan-Butler v. Department of Justice, EEOC Appeal No. 0120114035 (January
25, 2013) (Commission regulations do not provide for interlocutory appeals of AJ rulings during
the hearings process).

Further, there is no evidence that either the Agency or the AJ has issued a decision during the
pendency of this matter before the Commission. In fact, there is evidence to the contrary as a
discovery schedule has been extended at Complainant’s request, and the dates for the close of
discovery, and filing motions are set. Additionally, after dismissing Complainant’s hearing
request, the AJ set a date of October 14, 2019 to reopen Complainant’s hearing request.
Accordingly, this matter must be dismissed.

CONCLUSION

For the foregoing reasons, the purported appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)
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 (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.

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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

August 21, 2019
Date