0120112316
03-21-2012
Maryanne Burgess, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Maryanne Burgess,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112316
Agency No. CHI-11-0006-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency’s
decision dated February 2, 2011, 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. Upon
review, the Commission finds that Complainant’s complaint was improperly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing
of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Technical Assistant at the Agency’s Teleservice Center in Chicago,
Illinois. Complainant contacted an EEO Counselor on October 4, 2010,
and subsequently filed a formal complaint alleging that the Agency
had subjected her to discrimination on the bases of her age (64) and
in reprisal for prior protected EEO activity when on August 27, 2010,
she learned she was not selected for the position of Social Insurance
Specialist.
The Agency dismissed the case, pursuant to 29 C.F.R. § 1614.107(a)(2)
for untimely filing of the complaint. The Agency found that Complainant
received the Notice of her right to file a formal complaint on November 6,
2010, but failed to file her formal complaint until December 21, 2010.
On appeal, Complainant acknowledges that she received the Notice on
November 6, 2010, but contends that she filed her formal complaint on
November 15, 2010. She further states that the Agency’s EEO Office
informed her that it had not received her complaint so she resent it
with a copy of the delivery confirmation receipt showing that it was
originally delivered to the Agency on November 17, 2010.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an Agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. §
1614.106, which, in turn, requires the filing of a formal complaint
within 15 days of receiving the notice of the right to do so.
Here, the record contains a copy of a delivery confirmation receipt
showing that the Agency received Complainant’s formal complaint on
November 17, 2010, which is within the fifteen days set forth in the
regulations. The record further contains a copy of an email from the
Equal Employment Specialist, dated December 15, 2010, in response to
Complainant’s request for a status update, stating that the EEO office
had not received a copy of her formal complaint. The record shows that
Complainant subsequently filed a second copy of her formal complaint
with the Agency and included the delivery confirmation receipt showing
that the Agency originally received her formal complaint on November
17, 2010. The Agency has not responded to Complainant’s statements
that her complaint was received by the Agency on November 17, 2010.
Therefore, we find that Complainant’s formal complaint was timely filed.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is
REVERSED and the complaint is REMANDED to the Agency in accordance with
this decision and the Order herein.
ORDER(E0610)
The Agency is ordered to process the remanded claim in accordance
with 29 C.F.R. §1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the Agency shall issue a
final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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.
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
March 21, 2012
__________________
Date
2
0120112316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120112316