0120072197
05-18-2007
Avis S. Johnson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Avis S. Johnson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120072197
MSPB No. DA-0752-07-0088-I-1
Agency No. 05-0093-SSA
DECISION
Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from an initial decision of the Merit
Systems Protection Board (MSPB) dated March 8, 2007, which became final
on April 12, 2007, denying her MSPB appeal for lack of jurisdiction.
The appeal alleged discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., when
complainant was constructively discharged effective October 1, 2004.
Previously, in Johnson v. Social Security Administration, EEOC Appeal
No. 01A53098 (July 19, 2005), the Commission ruled that complainant's
complaint alleged discrimination based on her race (black), age (over 40)
and disabilities when she was constructively discharged effective October
1, 2004. The decision reflects that complainant claimed she left the
agency due to harassment. EEOC Appeal No. 01A53098 ordered the agency
to investigate the claim of constructive discharge. Complainant did
not request reconsideration of this decision.
On remand, following an investigation, the agency issued a final
agency decision (FAD) dated October 18, 2006, finding no discriminatory
harassment and no discriminatory constructive discharge. It gave appeal
rights to the MSPB. Following her appeal to the MSPB, the MSPB issued an
initial decision finding complainant was not constructively discharged.
Based on this, the MSPB found it lacked jurisdiction over the appeal.
While noting complainant also alleged discrimination, it found this
did not confer jurisdiction to the MSPB absent its lack of jurisdiction
over the underlying action. The initial decision did not give appeal
rights to the EEOC. Nevertheless, complainant filed an appeal to the
Commission.
The Commission has held that where an individual files an appeal
with the MSPB which is dismissed for lack of jurisdiction, the matter
will not be viewed as a "mixed case." Rather, it will be treated as a
"non-mixed" matter and processed accordingly. See Schmitt v. Department
of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) (sets forth
the policy of the Commission assuming jurisdiction over cases dismissed
by the MSPB for lack of jurisdiction); Phillips v. Department of Army,
EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b).
As the agency already investigated complainant's complaint, it is remanded
in accordance with the order below.1
ORDER
Complainant is advised that by operation of 29 C.F.R. �1614.302(c)(2)(ii),
the agency is required to process her complaint of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. �1614.109 et seq. The agency
shall acknowledge to complainant that it has received the remanded
matter and give her a notice of a right to request a hearing before an
EEOC Administrative Judge or a final agency decision without a hearing
within 30 days of the date this decision becomes final. If complainant
requests a final decision without a hearing, the agency shall issue a
final decision within 60 days of receipt of her request.
A copy of the agency's letter to complainant giving her a notice of
a right to request a hearing before an EEOC Administrative Judge or a
final agency decision without a hearing must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 18, 2007
__________________
Date
1 On appeal, complainant avers that her claim concerns harassment.
Her claim concerns harassment and a concomcitant constructive discharge.
The agency's FAD specifically found no discriminatory harassment and no
discriminatory constructive discharge. Complainant also has raised
the basis of reprisal discrimination for prior EEO activity.
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0120072197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072197