Frances Zah, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01a00931 (E.E.O.C. May. 31, 2000)

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.