0120113300
11-21-2012
David Lim, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
David Lim,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120113300
Agency No. HHS-FDAOC-099-10F
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's decision dated January 5, 2011, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee. He had worked as a Commissioner's Fellow at the Agency's Science Medical Office facility in Silver Spring, Maryland.
On September 27, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the basis of reprisal for prior protected EEO activity when:
(1) On July 29, 2010, he received notice that he owed the Agency a large sum of money (between $5,000 and $10,000). Complainant alleged the Agency "fabricated" this debt to recover a hiring bonus he received by making it look like he voluntarily resigned when, in fact, his employment was terminated by the Agency.
(2) On August 2, 2010, the Agency reported the debt to a debt collection agency.
(3) On August 9, 2010, he received a letter of demand from the debt collection agency.
The Agency dismissed the matter, pursuant to 29 C.F.R. � 1614.107(a)(1), asserting the claim had already been decided in another proceeding. According to the Agency, Complainant initially contacted an EEO counselor to raise these issues in August 2010, and then filed the instant formal complaint on September 27, 2010. The Agency then states that in November 2010, Complainant moved to amend an earlier filed complaint (Agency No. HHS-FDAOC-076-09), pending before an EEOC Administrative Judge (AJ), to add, among other things, these claims. The Agency provides the AJ's November 4, 2010 prehearing memorandum that defines the claims for the hearing (EEOC Hearing No. 531-2010-00342X) in that case. The AJ's definition of the claims in that case does not mention the proposed amendments.
The instant appeal from Complainant followed the Agency's dismissal decision.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that "same" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997).
It is not clear from the record what happened to Complainant's claims concerning the debt before the AJ in Agency No. HHS-FDAOC-076-09.2 Since they were not included in the AJ's prehearing conference memorandum detailing the issues for hearing, it cannot be determined whether the Agency was directed to continue processing the debt claims separately because they were not like or related to the claims before the AJ, or whether the AJ dismissed them for other reasons. Therefore, we do not find support for the Agency's contention that the instant claims have already been adjudicated by the AJ in Agency No. HHS-FDAOC-076-09.
Moreover, to the extent that the Agency is implying that these matters have been adjudicated in some federal court, it has provided no evidence of such in the record forwarded to this Commission, and does not expressly reference such a court case in the FAD. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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
November 21, 2012
__________________
Date
1 On appeal, Complainant states that he received the Agency's decision on February 12, 2011. He did not file his appeal until May 9, 2011. However, an examination of the FAD shows that the Agency failed to give Complainant appeal rights from its decision to dismiss his complaint. As such, Complainant's appeal is accepted as timely filed.
2 The AJ accepted six claims related to Complainant's termination and work issues.
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0120113300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113300