0720100041
09-03-2010
Emerito Rodriguez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Emerito Rodriguez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720100041
Hearing No. 510-2009-00047X
Agency No. NY-08-0060-SSA
DISMISSAL OF APPEAL
On June 10, 2010, the Agency filed an appeal with this Commission concerning Complainant's equal employment opportunity (EEO) complaint of unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621. In his complaint, Complainant, a Teleservice Representative, GS-8, alleged that he was subjected to discrimination on the basis of sex (male) and age (68) when the Agency did not select him for any of the Claims Representative positions for which he applied under Vacancy Announcement Number RO II 166-07NY. At the conclusion of the investigation, Complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ assigned to the case held a hearing on February 3, 2010. On April 20, 2010, the AJ issued a decision finding that the Agency discriminated against Complainant on the basis of age when he was not selected for a promotion to the position of Claims Representative. The AJ further found that there was insufficient evidence in the record to support a finding of discrimination based on sex. The AJ ordered the Agency to: (1) immediately promote Complainant to the position of Social Insurance Specialist (Claims Representative, bilingual), GS-105-5/7/9/11; (2) pay back-pay to the Complainant from the time that the Agency issued the selections for the positions for Social Insurance Specialist (Claims Representative, bilingual), GS-105-5/7/9/11 advertised under Vacancy Announcement Number ROII 166-07NY; (3) conduct training for supervisory and managerial staff at Agency facilities in San Juan, San Patricio, and Bayamon1 that details their responsibilities under the provisions of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, and EEOC laws and regulations with respect to eliminating discrimination in the federal workplace in promotions, assignments, hiring, firing, compensation, or other terms and conditions of employment; and (4) have the Head of these facilities sign and then post the attached Notice immediately upon receipt. The AJ ordered that this notice must be displayed in conspicuous places for 60 days, including all places where notices to employees and applicants for employment are customarily located, and that the Agency should take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.
The record contains a Certificate of Service reflecting that the AJ mailed her decision to the Assistant Regional Counsel in the Agency's Office of General Counsel on April 20, 2010. A date-stamped copy of the AJ's decision provided by the Agency as part of the Complaint file reflects that the Agency received the AJ's decision on April 27, 2010. The Agency issued its notice of appeal and final order on June 10, 2010, and a brief in support of its appeal on June 30, 2010.
Pursuant to 29 C.F.R. � 1614.110(a), if an agency decides not to fully implement and Administrative Judge's decision, it must first issue a final order and then simultaneously file an appeal with the Commission in accordance with 29 C.F.R. � 1614.403. A copy of the appeal must be appended to the final order. The Commission's Management Directive 110 (November 9, 1999) (MD-110), provides that if the agency fails to issue a final order and file an appeal with the issuance of the order, the Administrative Judge's decision will be deemed ratified by the agency upon the expiration of the agency's 40-day period for accepting or not accepting the Administrative Judge's decision. EEO MD-110, 9-7, n. 4.
In the present case, we find that the Agency filed its appeal in an untimely manner. Although the AJ mailed a copy of her decision to the Agency on April 20, 2010, the Agency did not file its appeal with the Commission until June 10, 2010. This date is beyond the 40-day filing period, as the Agency should have filed its notice of appeal with the Commission by June 7, 2010.2 The Agency offers no reason for its delay on appeal.
The Agency presented on appeal arguments addressing the merits of the case, asserting, among other things, that AJ's decision is the result of factual and legal errors, and is not based on substantial evidence of record. However, because the Agency's failure to timely file its appeal constitutes a failure to take action during the 40-day period set forth at 29 C.F.R. � 1614.110(a), the Agency is not permitted to challenge any aspect of the AJ's decision. See McCue v. U.S. Postal Service, EEOC Appeal No. 01A13411 (Aug. 8, 2002). Therefore, the Commission will make no determination as to the finding of discrimination.
Accordingly, the Agency's appeal is hereby DISMISSED. The Agency is ORDERED agency to provide relief consistent with the AJ's decision, as stated in the Order of the Commission, below.
ORDER
The agency is hereby ORDERED to take the following remedial action:
1. The Agency shall place Complainant in the position of Social Insurance Specialist (Claims Representative, bilingual), GS-105-5/7/9/11, retroactive to the date of the selections in October 2007, within sixty (60) days of the date on which this decision becomes final.
2. The Agency shall tender to Complainant back pay and benefits to Complainant, retroactive to the date of the selections in October 2007 through the actual date of Complainant's placement in the position, within sixty (60) days of the date on which this decision becomes final
3. The Agency shall conduct training for supervisory and managerial staff at its facilities in San Juan, San Patricio, and Bayamon. The training should detail the responsibilities of supervisors and managers under the provisions of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, and EEOC laws and regulations with respect to eliminating discrimination in the federal workplace in promotions, assignments, hiring, firing, compensation, or other terms and conditions of employment, within ninety (90) days of the date on which this decision becomes final.
4. The Agency shall post a Notice of the finding of discrimination, as set forth in detail in the below-entitled paragraph, "Posting Order," within thirty (30) days of the date on which this decision becomes final.
The agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its San Juan, San Patricio, and Bayamon facilities 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
September 3, 2010
Date
1 The record reflects that the selection action at issue involved personnel from all three facilities.
2 The fortieth day after the Agency's receipt of the AJ's decision was Sunday, June 6, 2010. Our regulations provide that when a deadline falls on a Saturday, Sunday, or Federal holiday, the deadline will be extended to the next business day. 29 C.F.R. � 1614.604(d).
??
??
??
??
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720100041