01a55975
03-15-2006
George Sincavage, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
George Sincavage,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A55975
Agency No. 03-0414-SSA
DECISION
On September 12, 2005, complainant filed an appeal from the agency's
August 22, 2005 final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Social Insurance Representative at the agency's facility in West
Haven, Connecticut. Complainant applied for the position of a Claims
Representative that was posted under Vacancy Announcement Numbers 30-03
and 31-03. Complainant was not selected. Therefore, on June 12, 2003,
complainant contacted an EEO Counselor and filed a formal EEO complaint
on August 13, 2003, alleging that he was discriminated against on the
basis of age (D.O.B. 10/31/50) when, he was not selected for the Claims
Representative position.
At the conclusion of the investigation, on September 28, 2004, complainant
was provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
The agency issued its final decision believing that complainant did
not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f). The final decision concluded that complainant failed to
prove that he was subjected to discrimination as alleged.
Complainant appealed asserting that the agency should not have issued its
final decision. In particular, he noted that he received the agency's
report of investigation on October 1, 2004. Subsequently, complainant
requested a hearing by letter dated October 21, 2004, addressed to the
EEOC's New York District Office. Complainant provided a copy of the
letter. In addition, complainant provided an affidavit averring that he
submitted a request for a hearing to the EEOC's New York District Office
on October 21, 2004, as well as a copy of said request to the agency.
EEOC Regulation 29 C.F.R. � 1614.108(g) provides, in relevant part, that
the agency shall notify a complainant that the formal investigation of
his complaint has been completed, shall provide the complainant with
a copy of the investigative file, and shall notify the complainant
that, within thirty (30) days of receipt of the investigative file,
the complainant has the right to request a hearing before an AJ or may
receive an immediate final action by the agency pursuant to 29 C.F.R. �
1614.110, from the agency with which the complaint was filed.
Accordingly, based on complainant's evidence of a properly made and
timely request for a hearing, and in the interest of justice, it is
the decision of the Commission to VACATE the agency's final decision.
Complainant's complaint is hereby REMANDED, and the agency is directed
to comply with the ORDER set forth below.
ORDER
The complaint is remanded to the Hearings Unit of the New York District
Office for scheduling of a hearing in an expeditions manner. The agency
is directed to submit a copy of the complaint file to the Hearings Unit
of the New York District Office within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the EEOC AJ shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109, and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
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
March 15, 2006
__________________
Date
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01A55975
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A55975