0120100715
04-23-2010
Pamela Ewald, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Pamela Ewald,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100715
Hearing No. 451-2009-00092X
Agency No. DA072261SSA
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's final decision dated December 10, 2009, finding no discrimination.
In her complaint, complaint alleged that she was subjected to discrimination on the basis of disability.
By letter dated November 28, 2007, the agency accepted complainant's complaint for investigation as a mixed case complaint. The agency determined that complainant's complaint was comprised of the following claims:
1. Management issued a letter dated May 10, 2007, informing complainant that she would no longer be able to work at home as a reasonable accommodation. She was instructed to return to work on July 2, 2007.
2. She was constructively forced to retire from the position of Senior Case Technician effective August 1, 2007.
The agency informed complainant that the complaint was being processed as a mixed case complaint and that if she did not receive a final decision within 120 days from when the complaint was filed, complainant could appeal to the Merit Systems Protection Board (MSPB).
Complainant, however, requested a hearing before an EEOC Administrative Judge in February 2009.
On September 10, 2009, the EEOC AJ issued an Order Denying Request for Hearing. Therein, the AJ found that complainant filed a mixed case complaint and that Commission regulations do not provide for a hearing before an EEOC AJ on mixed case complaints. The AJ denied complainant's hearing request and ordered the agency to issue a final decision within 45 days.
On December 10, 2009, the agency issued a final decision finding no discrimination. The agency advised complainant that she could file an appeal with the MSPB but not with the EEOC.
As set forth above, the agency identified this matter as a mixed case complaint. In a mixed case complaint, the agency must advise a complainant, at the time it issues a final decision on the merits of complainant's complaint, of her right to appeal to the MSPB, not EEOC. 29 C.F.R. � 1614.302(d)(3). Although the agency properly notified complainant of her right to pursue her claim with the MSPB, complainant improperly filed an appeal with this Commission. If the MSPB determines that it lacks jurisdiction over the matter, then the agency must recommence processing of the matter as a non-mixed EEO complaint. 29 C.F.R. � 1614.302(c)(2)(ii). Therefore, the Commission does not have jurisdiction over complainant's appeal; her appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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. 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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 23, 2010
Date
2
0120100715
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100715