Avis S. Johnson, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMay 18, 2007
0120072197 (E.E.O.C. May. 18, 2007)

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