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.