01995551
05-08-2001
Eileen R. Rivkin, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Eileen R. Rivkin v. Social Security Administration
01995551
May 8, 2001
.
Eileen R. Rivkin,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01995551
Agency No. 990327SSA
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision 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. In a letter dated December 16, 1998,
requesting the assignment of an Equal Employment Opportunity counselor
to investigate her claims, complainant alleged that she was subjected
to discrimination on the bases of sex (female), religion (Jewish) and
in reprisal for prior protected activity<1> when on December 10, 1998:
management fraudulently falsified receipts;
management knowingly gave false written statements, switched dates,
and lied in their official capacity as supervisors or higher level
managers; and
management created a hostile work environment based on the acts of
falsification of receipts.
On June 4, 1999 the agency issued a final agency decision (FAD)
concerning the instant complaint. In the FAD the agency defined the
complaint as alleging that management conspired, lied and falsified
records by back-dating a proposed fourteen-day suspension and as a result
complainant was denied due-process when her response to the proposed
suspension was considered untimely. The agency subsequently found that
this complaint failed to state a claim under 29 C.F.R. � 1614.107(a)(1),
in that the proposed suspension was canceled by management.
On appeal, complainant argues that the agency erred in dismissing her
complaint as the FAD did not correctly identify the issues. Complainant
also contends that the agency failed, through its EEO counselor, to
properly counsel all of the issues in her complaint, and therefore she
was denied the opportunity to establish a foundation for her claims.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion thereof which fails to state a
claim pursuant to 29 C.F.R. �1614.103. For employees and applicants
for employment, EEOC Regulation 29 C.F.R. �1614.103 provides that
individual and class complaints of employment discrimination prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex, and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least 40 years of age) and the
Rehabilitation Act (discrimination on the basis of disability) shall
be processed in accordance with Part 1614 of the EEOC Regulations. To
establish standing as an "aggrieved" employee within the context of
29 C.F.R. �1614.103, complainant must allege first of all, that s/he
has been injured in fact. See Hackett v. McGuire Bros, 445 F. 2d 447
(3rd Cir. 1971). Specifically, complainant must allege some direct harm
which affects a term, condition or privilege of employment. See Riden
v. Department of the Treasury, EEOC Request No. 05970314 (October 2,
1998).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether s/he has alleged employment
discrimination covered by the EEO statutes. An employee is "aggrieved"
if s/he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990).
In the instant case, complainant is not alleging that the proposed
fourteen-day suspension was discriminatory, rather complainant alleges
that management committed the fraudulent acts enumerated above and
that through these acts created a hostile work environment. As this is
an alleged pattern of harassment that states a direct harm to a term,
condition or privilege of her employment, complainant is aggrieved within
the meaning of the regulations. We therefore REVERSE the agency decision
to dismiss this complaint for failure to state a claim and REMAND the
complaint back to the agency for further processing in accordance with
the order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 8, 2001
__________________
Date
1 The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute such activity occurred.