01a00931
05-31-2000
Frances Zah, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Frances Zah, )
Complainant, )
)
v. ) Appeal No. 01A00931
) Agency No. IHS06499
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's October 15, 1999 final decision
dismissing the complaint on the basis that Complainant raised the
matter in a negotiated grievance procedure that allows allegations
of discrimination, is not proper pursuant to the provisions of 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.107(a)(4)).<1>
The record shows that on April 21, 1999, Complainant was notified by
the Supervisory Medical Officer (SMO) that he had issued an official
reprimand against her effective April 21, 1999. Complainant was advised
that she had the right to grieve the official reprimand, or to file a
discrimination complaint.
By letter dated May 5, 1999, the union's Chief Steward, advised the SMO
that �this letter is to inform you of step one of a grievance regarding
an AWOL given to [Complainant] on April 21, 1999 ... we feel that this
is the reason for the AWOL and would like it removed�.
By note dated May 13, 1999, Complainant informed the Regional EEO Director
that �this is my 3rd complaint via EEO. I am still being harassed
and retaliated against�. By letter dated May 14, 1999, Complainant
sent a letter to the union's chief steward informing her that �this EEO
complaint is against [the SMO]�.
By letter dated May 17, 1999, the Regional EEO Director advised
Complainant that �if you are requesting to file an informal complaint
on the 16 hours of AWOL ... you must consult one of the EEO counselors
who work at your facility�. By letter dated May 25, 1999, the union's
chief steward informed the SMO that Complainant had �decided to pursue
other avenues for her grievances�.
On May 27, 1999, Complainant contacted the EEO Counselor claiming that
she had been discriminated against on the bases of race, sex, reprisal,
age, physical disability, and mental disability when:
(1) she was harassed and denied 16 hours of sick leave, which resulted
in being charged AWOL;
(2) she was issued an official reprimand;
(3) she was denied training;
(4) she was subject to harassment and sexual harassment.
Complainant further claimed that she had been discriminated against
concerning her work duties and assignments.
Subsequently, Complainant filed a formal complaint claiming that she had
been discriminated against on the bases of race, sex, color, physical
disability, age, and reprisal when she was issued an official reprimand
on April 21, 1999.
The agency issued a final decision dismissing the complaint on the
basis that Complainant had elected to file a grievance and had, in fact,
filed a grievance prior to filing an EEO complaint. The agency noted
that Complainant, who had previously participated in the EEO process,
�knew or should have known of the procedures when she made her election
to file the union grievance over the EEO complaint�.
On appeal, Complainant contends, inter alia, that �although [she] knew
that [the union's chief steward] was a union steward, [Complainant] was
dealing with [her] as a helper in presenting [Complainant's] EEO complaint
as an EEO complaint�. Complainant further argues that, in his response
to the alleged grievance, the SMO �does not even indicate that he is
responding to a union grievance. He simply states, accurately, that he
is responding to a letter. His letter does not purport to grant or deny
any particular relief�. Finally, Complainant states that �before she
became a union steward, [the union's chief steward] was an EEO counselor
and [Complainant] was used to dealing with [her] in that capacity�.
The Commission notes that the agency has failed to provide a copy
of the collective bargaining agreement which allegedly granted to
Complainant the right to file a grievance to resolve her concerns.
Clearly, it is the burden of the agency to have evidence or proof in
support of its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991). Based on the foregoing,
we find that the dismissal of the complaint was improper. Accordingly,
the final agency decision is REVERSED. The complaint is REMANDED for
further processing
ORDER (E0400)
The agency is ORDERED to process the remanded complaint in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge
to the complainant that it has received the remanded complaint 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. in
accordance with this decision and applicable regulations.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
May 31, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____
__________________________________
DATE EQUAL EMPLOYMENT
ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.