0520120080
04-20-2012
Bernethia Johnson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Bernethia Johnson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120080
Appeal No. 0120082129
Agency No. ATL-03-0364-SSA
DISMISSAL OF REQUEST FOR RECONSIDERATION
Complainant requested reconsideration of the decision in Bernethia Johnson v. Social Security Administration, EEOC Appeal No. 0120082129 (September 9, 2011).
In response to Complainant's request for reconsideration, the Agency asserts that Complainant failed to timely file her request within 30 days after receiving our previous decision pursuant to 29 C.F.R. � 1614.405(b). The Agency notes that our previous decision was dated September 9, 2011, but Complainant did file her request until October 26, 2011. The Agency indicated that Complainant's former attorney's notice of withdrawal indicated that she had forwarded our previous decision to Complainant on September 27, 2011, which was 13 days before the expiration of the 30-day time limitation period. 1 The Agency further asserts that Complainant and her attorney should have notified the Commission of any changes in their addresses, and we should not excuse the failure to meet the 30-day limitation period.
We note that a party must file a request to reconsider a previous decision within 30 calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
Complainant contends that she did not receive our previous decision because it was not sent to her in time by her former attorney who had changed addresses. However, we note that our previous decision included a Certificate of Mailing with both Complainant's and her former attorney' address which indicated that, for purposes of timeliness, we would presume that the decision was received within five calendar days of the date on which it was mailed, September 9, 2011. Therefore, Complainant is presumed to have received the previous decision no later than September 14, 2011, and 30 days from that date is October 14, 2011. We note that Complainant through her new attorney filed the instant request on October 26, 2011, which was beyond the 30-day time limit set by regulation. The record indicates that Complainant filed the instant request from a different address than the one she provided in her previous appeal. We note that Complainant provided the Commission with notice of her change of address on September 28, 2011, which was after we had already issued our previous decision. Accordingly, we find that Complainant has not provided an adequate justification for extending the time limitation period and therefore Complainant's request for reconsideration is hereby dismissed.
The decision in EEOC Appeal No. 0120082129 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
To the extent it has not already done so, the Agency is ordered to pay Complainant $8,000.00 in non-pecuniary damages within 30 calendar days from the date this decision becomes final.
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 verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
April 20, 2012
Date
1 The Commission notes that its regulations at 29 C.F.R. � 1614.605(d) specifically state that when "complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of materials shall be computed from the time of receipt by the attorney." [Emphasis added.]
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0520120080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120080