0120121800
01-11-2013
Ana I. Gonzalez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Ana I. Gonzalez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121800
Agency No. NY-09-0667-SSA
DISMISSAL
Complainant filed an appeal with this Commission from the EEOC Administrative Judge's (AJ) decision dated February 8, 2012, dismissing the hearing regarding her complaint of unlawful employment discrimination in violation the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Subsequently, the Agency issued a Final Decision on July 30, 2012, finding no discrimination.
At the time of events giving rise to this complaint, Complainant applied for Social Insurance Specialist positions with the Agency under Vacancy Announcement numbers SN-243013-NY-09-027, SN-243184-NY-09-038; SN-243184-NY-09-039; and SN-236970-NY-KM-09-020.
On September 9, 2009, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (55) when she was not referred for the positions listed above effective May 4, 2009. The matter was investigated. Following the investigation, Complainant requested a hearing before an EEOC AJ. The Agency moved to have the matter dismissed from the hearing asserting that Complainant's claim of discrimination was based on Complainant's scores on the Administrative Careers with America examination (ACWA test). The Agency argued that because the matter involved the ACWA test, the matter should have been considered a mixed case appeal and is within the jurisdiction of the Merit Systems Protection Board (MSPB), not the EEOC.
On February 8, 2012, the AJ issued her decision dismissing the matter from hearing. The AJ remanded the complaint back to the Agency for an issuance of a final decision on the mixed case complaint pursuant to 29 C.F.R. � 1614.302. Complainant filed her appeal following the AJ's Notice of Dismissal.
The Agency issued its final decision on July 30, 2012, finding that Complainant failed to establish that she was subjected to discrimination. The Agency provides appeal rights for Complainant to the MSPB, not EEOC.
A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, but not both. 29 C.F.R. �1614.302(b). As a general matter, if Complainant is dissatisfied with the Agency's final decision on a mixed case complaint, Complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the Agency's final decision. 29 C.F.R �1614.302(d)(l)(ii).
In the present matter, the AJ determined that Complainant's claim constituted a mixed case complaint and remanded the complaint to the Agency. The Agency then issued a final decision finding no discrimination.
Here, the final decision gave Complainant mixed case rights and instructed her to file with the MSPB, not the EEOC. We note that the Commission's regulations require that should the MSPB dismiss an appeal for lack of jurisdiction, the Agency is required to recommence processing the matter as a non-mixed case. 29 C.F.R. � 1614.302(c)(2)(h).
Therefore, we find that the instant matter should be DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
January 11, 2013
__________________
Date
2
0120121800
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121800