0720070013
09-12-2007
Elaine Batchelor, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Elaine Batchelor,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720070013
Hearing No. 310200500316X
Agency No. 040246SSA
DECISION
On August 16, 2006, a Commission Administrative Judge (AJ) issued a
decision on damages after having found, in a decision issued March
1, 2006, that the agency had discriminated against the complainant.
In the earlier decision, the AJ found that the agency violated the Age
Discrimination in Employment Act of 1967 (ADEA). Specifically, the AJ
found that the agency discriminated against complainant on the basis of
her age and retaliated against her for prior EEO activity when she was
not selected for the position of Technical Expert (GS-12).
On October 16, 2006, the agency issued a final order in which it declined
to adopt the AJ's findings and, on October 17, 2006, filed an appeal
with the Commission.1 The agency argues on appeal that the AJ erred in
finding that complainant was discriminated against as she alleged and
is not entitled to the damages and attorneys fees awarded by the AJ.
In response, complainant argues that the agency's appeal is untimely and
should be dismissed. Complainant requests that the Commission reinstate
the AJ's decision.
Where an agency declines to adopt a decision issued by an AJ, the agency
must issue a final order within 40 days of receipt of the hearing file
and AJ's decision and simultaneously file an appeal with the Commission.
29 C.F.R. � 1614.110(a). If the agency does not issue a final order
within 40 days of receipt of the AJ's decision in accordance with 29
C.F.R. � 1614.110(a), then the decision of the AJ shall become the final
action of the agency. 29 C.F.R. � 1614.109(i).
According to the date stamp on the AJ decision accompanying this appeal,
the agency received the AJ's decision on September 5, 2006.2 Therefore,
the agency's final action was timely issued on October 16, 2006.
However, the agency failed to simultaneously file an appeal with the
Commission in accordance with 29 C.F.R. � 1614.110(a). The agency filed
its appeal with the Commission on October 17, 2006, one day after the
expiration of the agency's 40-day time period. The agency has offered
no justification for an extension of the applicable time limit for
filing its appeal. Therefore, we find that because the agency's appeal
is untimely, the appeal is dismissed. See Hunt v. Dep't of Defense,
EEOC Appeal No. 07A00024 (October 8, 2002). Accordingly, because the
agency filed an untimely appeal, we find that on October 16, 2006, the
Administrative Judge's decision became the final action of the agency.
29 C.F.R. � 1614.109(i). On appeal, complainant does not contest the
AJ's findings and award of damages and attorney's fees. As such, the
agency shall comply with the order below.
ORDER
1. Within sixty (60) calendar days, the agency shall offer complainant the
position of Social Insurance Specialist (Technical Expert), GS-105-12.
Complainant shall be given a minimum of fifteen (15) days from receipt
of the offer of placement within which to accept or decline the offer.
Failure to accept the offer within the time period set by the agency
will be considered a rejection of the offer, unless complainant can show
that circumstances beyond her control prevented a response within the
time limit.
2. The agency shall calculate and award to complainant back pay at the
GS-12 level to the beginning of the first pay period after February
20, 2004, including any appropriate step increases and all appropriate
benefits.
3. The agency is ordered to cease and desist discriminating against the
complainant. The agency shall consider taking appropriate disciplinary
action against the responsible management officials. The Commission does
not consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
4. The agency shall take corrective, curative and preventive action
to ensure that discrimination does not recur. This includes, but
is not limited to, providing training to the relevant management
officials, regarding their responsibilities with respect to eliminating
discrimination in the federal workplace. The training must place a
special emphasis on the agency's obligations under the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and the retaliation provision under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq..
5. The agency shall pay complainant $11,000.00 in non-pecuniary
compensatory damage and $25,690.48 in attorney's fees and costs.
POSTING ORDER (G0900)
The agency is ordered to post at its Waco, Texas facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
___9/12/07_______________
Date
1 The Office of Federal Operations (OFO) record keeping system docketed
the agency's appeal as filed on October 23, 2006, however, evidence
in the record shows that OFO received the agency's appeal post-marked
October 17, 2006, on October 18, 2007. As such, we find that the agency
filed its appeal in this case on October 17, 2006.
2 The agency's argument that it did not receive the AJ's decision until
September 12, 2006, when the Office of Civil Rights and Equal Opportunity
received the decision is unavailing. The time period began to run when
the agency, through its Dallas Texas District Office, received the AJ's
decision on September 5, 2006. Nevertheless, the agency's final order
issued on October 16, 2006, was timely since the fortieth day of the
time period fell on a Sunday.
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0720070013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0720070013