Veronica Truesdale, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01993447 (E.E.O.C. Apr. 20, 2000)

01993447

04-20-2000

Veronica Truesdale, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Veronica Truesdale, )

Complainant, )

)

v. ) Appeal No. 01993447

) Agency No. 99-0209-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964.<1> The

final agency decision was issued on March 19, 1999. The appeal was

postmarked March 25, 1999. Accordingly, the appeal is timely (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter cited

as 29 C.F.R. �1614.402(a)), and is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �1614.405).

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly dismissed

the complaint on the grounds of failure to state a claim.

BACKGROUND

Complainant initiated contact with an EEO Counselor on January 13, 1999.

In a formal EEO complaint dated February 24, 1999, complainant claimed

that she was discriminated against on the basis of reprisal when she

was not selected for a Service Representative position.

In its final decision, the agency dismissed the complaint on the grounds

of failure to state a claim. Initially, the agency defined the complaint

as involving two separate issues, namely, whether complainant was

subjected to harassment (nonsexual) and reprisal when: (1) she was first

approved for 48 hours of religious compensatory time in August 1998, but

was charged with leave without pay (LWOP); and (2) she was not selected

for a Service Representative position. The agency found that the entire

complaint failed to state a claim because complainant failed to identify

a covered basis of alleged discrimination since she purportedly was never

involved in prior EEO activity. Next, the agency determined with regard

to the identified claim (1) of complainant being charged leave without

pay that complainant's EEO contact was untimely. According to the agency,

complainant initiated contact with an EEO Counselor on January 13, 1999,

six months after she was charged with leave without pay. The agency

also dismissed this claim on the grounds of mootness. According to the

agency, complainant was made whole by correcting her leave record and

timely providing her with the requisite backpay.

ANALYSIS AND FINDINGS

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

cited as 29 C.F.R. �1614.107(a)(1)) provides that an agency shall dismiss

a complaint that fails to state a claim. An agency shall accept a

complaint from any aggrieved employee or applicant for employment who

believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. � 1614.103(a); � 1614.106(a). The Commission's

federal sector case precedent has long defined an "aggrieved employee"

as one who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 22,

1994).

Initially, we find that the agency misdefined the complaint.

Complainant was solely challenging her nonselection for the Service

Representative position. Complainant's reference to the LWOP incident

and her dispute of the charge of LWOP after her request for 48 hours of

religious compensatory time had been approved is presented as background.

Further, we note that complainant's challenge of the denial of religious

compensatory time constitutes protected activity rendering her cited basis

of reprisal proper. Accordingly, we find that complainant's complaint

of discrimination in reprisal when she was not selected for a Service

Representative position states a processable claim.

Accordingly, the agency's dismissal of the complaint on the grounds

of failure to state a claim was improper and is REVERSED.<2> This

complaint is hereby REMANDED for further processing in accordance with

the Order below.

ORDER (E0400)

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 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 (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 (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 (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:

April 20, 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 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.

2In view of our determination that the agency improperly included the

LWOP claim in the subject complaint, we need not address the agency's

dismissal of that claim further herein.