0120093773
08-17-2011
Barbara T. McCullough, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Barbara T. McCullough,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093773
Agency No. OC090711SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 21, 2009, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had
previously worked as a Benefit Technical Examiner at the Agency’s Office
of Central Operations facility in Woodlawn, MD. On August 10, 2009,
Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of age (53) when she learned in May
2009 that she was not reinstated to the position of Benefit Technician
Examiner.
The Agency dismissed this claim on August 21, 2009 for untimely EEO
counselor contact. Complainant appealed this procedural dismissal
on September 8, 2009. However, on September 24, 2009, while
Complainant’s appeal was still pending before the Commission’s Office
of Federal Operations, the Agency rescinded its dismissal and accepted
Complainant’s claim for investigation. Although it is not clear from
the record whether or not Complainant was notified that the Agency had
rescinded it’s initial dismissal of the instant complaint, the record
contains a letter dated January 12, 2010, in which Complainant appears
to be requesting a decision on her case from an Administrative Judge.
The record further indicates that following an Agency investigation of
the matter, the Agency issued a Final Agency Decision (FAD) on April 20,
2010 dismissing the claim on its merits and finding no discrimination,
which was received by the Commission on June 1, 2010. Commission records
however do not indicate that Complainant appealed the Agency’s April
20, 2010 final decision. In that regard, we find that there is no issue
currently before the Commission for adjudication.
CONCLUSION
As the Agency rescinded its August 21, 2009 dismissal of Complainant’s
claim, and because there is no record of Complainant appealing the
Agency’s finding of no discrimination, the instant matter is dismissed.
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 (S0610)
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 (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
August 17, 2011
__________________
Date
2
0120093773
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093773