01A13054
08-14-2002
E. Jean Jones, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
E. Jean Jones v. Social Security Administration
01A13054
August 14, 2002
.
E. Jean Jones,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A13054
Agency No. 970554SSA
DISMISSAL OF APPEAL
E. Jean Jones (complainant) filed an appeal on April 5, 2001 from the
agency's failure to issue a final order after an EEOC Administrative
Judge (AJ) determined that she had been subjected to disability-based
discrimination. A review of the record reveals that in a decision dated
October 19, 2000, the AJ entered a finding of discrimination and ordered
the agency to provide remedial relief. In response to complainant's
appeal, the agency acknowledges that it did not issue a final decision
until March 30, 2001, more than five months after the AJ issued his
decision, but notes that in that decision, it adopted the AJ's finding
of discrimination.
EEOC Regulation � 1614.401 provides, among other things, that a
complainant may appeal an agency's final action or dismissal of a
complaint, or an agency's alleged noncompliance with a settlement
agreement or final decision. Complainant is doing neither in the
case at hand, but is instead appealing the agency's failure to issue
a final order. When an agency fails to issue a final order within 40
days of its receipt of an AJ's decision, the AJ's decision becomes the
agency's final action. See 29 C.F.R. � 1614.109(i). As the agency makes
no argument that it did not received the AJ's decision within 5 days of
its issuance, we find that the AJ's decision became the agency's final
action on or around December 3, 2000.
We also note that in response to complainant's appeal, the agency stated
that it adopted the AJ's finding of discrimination and has begun the
process of complying with the AJ's order. In these circumstances, given
that complainant did not allege that the AJ's decision was erroneous
or that the agency failed to comply with the AJ's order, we find that
the appeal should be and hereby is dismissed.
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 (S0900)
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 (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
August 14, 2002
Date