Thomas R. Bouchard, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01990923 (E.E.O.C. Feb. 10, 2000)

01990923

02-10-2000

Thomas R. Bouchard, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Thomas R. Bouchard v. Social Security Administration

01990923

February 10, 2000

Thomas R. Bouchard, )

Complainant, )

)

v. ) Appeal No. 01990923

) Agency No. 98-0649-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's October 13,

1998 decision purportedly dismissing complainant's entire complaint for

stating the same claim as previously raised by complainant and dismissing

a portion of the complaint for untimely EEO Counselor contact.<1>

The agency dismissed the following claims for untimely EEO Counselor

contact:

On March 21, 1996 management charged complainant with 15 minutes of

absence without official leave and his pay was subsequently reduced

by $5.89.

On March 21, 1996 management issued complainant a written reprimand for

working after hours and for using the fax machine.

The agency found and the record shows that complainant initially

contacted an EEO Counselor regarding claims 1 and 2 on December 29, 1997.

Complainant argues on appeal that he is not challenging the actions

on March 21, 1996 but is instead challenging "the violation of my due

process rights" concerning the March 21, 1996 incidents. The Commission

finds that claims 1 and 2 ultimately concern incidents that purportedly

occurred on March 21, 1996. The Commission finds that complainant should

have reasonably suspected discrimination at the time of the incidents on

March 21, 1996. The agency's dismissal of claims 1 and 2 for untimely

contact of an EEO Counselor is proper pursuant to the regulation 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)).

To the extent that complainant's "due process" claim could somehow be

considered separate from the March 21, 1996 incidents, we find such a

claim to be too vague to state a claim for which relief can be granted.

Furthermore, there is no remedy for the "due process" claim which

can be separate from the remedy that would be available for claims 1

and 2 as defined by the agency. Therefore, we find that complainant's

"due process" claim, to the extent that it can be construed as separate

from claims 1 and 2, is properly dismissed for failing to state a claim

pursuant to 64 Fed. Reg. 37,644, 37656 (to be codified as and hereinafter

cited as 29 C.F.R. �1614.107(a)(1)).

The agency claims that claims 3 - 7 state the same claim as raised by

complainant in two prior complaints because claims 3 - 7 were either not

raised in the counseling efforts associated with the two prior complaints

(98-0013-SSA and 98-0281-SSA) or, "if" addressed in the agency's prior

decision on the complaints, are pending a decision from the Commission.

The two prior complaints referred to by the agency were the subject

of a decision by the Commission in Bouchard v. Social Security Admin.,

EEOC Appeal No. 01983972 (June 2, 1999).

The Commission finds that the agency has not claimed that claims 3 -

7 were actually raised in 98-0013-SSA or 98-0281-SSA. Therefore,

the agency's dismissal of claims 3 - 7 pursuant to �1614.107(a)(1)

was improper. Furthermore, the Commission's review of the instant

record does not provide sufficient evidence to show that claims 3 -

7 were previously raised by complainant in a prior complaint.

On appeal, complainant argues that the agency omitted the claim of

an incident on December 24, 1997. The record shows that complainant

claimed that on December 24, 1997, he informed the OIC that the agency

had created a hostile work environment and that because his request for

a reasonable accommodation had been denied, he was putting his health and

safety in peril. Complainant stated that he would take early retirement

effective December 30, 1997, and that this was a constructive discharge.

The Commission finds that the December 24, 1997 incident does not appear

to be a separate claim in the complaint. Complainant has already claimed

a denial of a reasonable accommodation in claims 5 and 7 (occurring on

October 24 and December 7, 1997, respectively). The Commission finds

that to the extent that complainant believes that the December 24, 1997

incident constitutes a separate claim, we find that this claim is properly

dismissed for failing to state a claim pursuant to �1614.107(a)(1).

Complainant has failed to show how he was aggrieved by any incident on

December 24, 1997. To the extent that complainant is attempting to raise

a constructive discharge claim, the Commission instructed the agency to

provide complainant with EEO counseling regarding such a claim in the

June 2, 1999 decision. Bouchard, EEOC Appeal No. 01983972.

The agency's decision dismissing claims 1, 2, and the December 24, 1997

incident is AFFIRMED. The agency's decision dismissing claims 3 - 7 is

REVERSED and we REMAND claims 3 - 7 to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). 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 an

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 (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 (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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

February 10, 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 Equal Employment Assistant

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.