Bobby J. Cardwell v. Social Security Administration
05980840
June 29, 2000
Bobby J. Cardwell, )
Complainant, )
)
v. ) Request No. 05980840
) Appeal No. 01975538
Kenneth S. Apfel, ) Agency No. 97-0347-SSA
Commissioner, )
Social Security Administration,)
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On May 28, 1999, Bobby J. Cardwell (complainant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Bobby J. Cardwell v.
Social Security Administration, EEOC Appeal No. 01975538 (May 7, 1999).
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §
1614.405(b)).<1> The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of the
agency. For the reasons which follow, complainant’s request is GRANTED.
Complainant filed a formal EEO complaint alleging, inter alia, that the
agency had discriminated against him on the basis of race (White) when he
was subjected to a racially hostile work environment. Complainant cited
a series of incidents involving his supervisor and coworkers. The agency
dismissed this allegation on the ground that complainant had not raised it
with an EEO Counselor in a timely fashion, noting that the most recent
such incident had occurred more than 45 days prior to complainant’s
initial contact with an EEO Counselor, which occurred on January 6, 1997.
The previous decision affirmed the agency’s dismissal of this allegation.
In his request for reconsideration, complainant reiterates his argument
on appeal that he timely raised with the EEO Counselor an incident of
alleged harassment which occurred on December 18, 1996, within the 45
days preceding his initial EEO Counselor contact; to wit, that a Black
coworker threatened to “put her fist in” his face. The previous decision
noted that this allegation was accepted by the agency as a separate
issue, delineated as “Complainant’s coworker threatened complainant with
physical violence on December 16, 1996, and management did not take the
threat seriously.”
The Commission finds that the previous decision erred when it affirmed the
agency’s rejection of complainant’s allegation of hostile work environment
on the ground of untimely EEO Counselor contact. The “fist in the face”
incident was one of a related series of incidents alleged by complainant
to have created a hostile work environment, and was raised with an EEO
Counselor within 45 days of its occurrence. Accordingly, the hostile
work environment claim was timely raised and should have been accepted
by the agency for processing. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Martinez v. Dept.
of Defense, EEOC Appeal No. 01983397 (June 23, 1997).
Upon review of complainant’s request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant’s
request meets the criteria of 29 C.F.R. §1614.407(c). Accordingly,
it is the decision of the Commission to GRANT complainant’s request
for reconsideration. The decision in Appeal No. 01975538 is REVERSED,
and the case remanded for the processing of the hostile work environment
allegation. There is no further right of administrative appeal from
the decision of the Commission on this request for reconsideration.
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).
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:
June 29, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
Date Equal Opportunity 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.
