05990118
05-30-2000
Jim D. Phillips, Complainant, Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Jim D. Phillips v. Department of Health and Human Services
05990118
May 30, 2000
Jim D. Phillips, )
Complainant, )
)
)
) Request No. 05990118
Donna E. Shalala, ) Appeal No. 01961956
Secretary, ) Agency No. IHS 642-94
Department of Health and Human ) Hearing No. 350-95-8144x
Services, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Jim
D. Phillips v. Department of Heath and Human Services, EEOC Appeal No.
01961956 (September 25, 1998). By regulation, requests for
reconsideration must be filed within 30 calendar days after the party
receives our previous decision. 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified as 29 C.F.R. � 1614.405(b)).<1> A document is timely
if it is received or postmarked before the expiration of the
applicable filing period, or, in the absence of a legible postmark, is
received by mail within five days of the expiration of the applicable
filing period. 64 Fed. Reg. 37,644, 37,661 (1999) (29 C.F.R. �
1614.604(b)).
A United States Post Office domestic return receipt indicates that our
previous decision was received by the agency on September 28, 1998.
The agency's request for reconsideration is postmarked October 30,
1998, beyond the 30 calendar day limitation period. The agency did not
submit any justification for extending the filing period beyond 30 days.
Accordingly, the agency's request for reconsideration is untimely and
is DENIED. The Commission's decision in EEOC Appeal No. 01961956 remains
the Commission's final decision in this matter.<2>
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall place the complainant in the GS-2010-7/9 Inventory
Management Specialist position in the Chinle Service Unit<3> effective
October 3, 1993, with back pay (minus interim earnings), appropriate
step and grade increases he might have received absent discrimination,
interest on back pay, and other benefits pursuant to 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified as 29 C.F.R. � 1614.501. The complainant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back pay
and/or benefits, the agency shall issue a check to the complainant for
the undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes to be due. The complainant may
petition for enforcement or clarification of the amount in dispute. The
petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within ten (10) calendar days of the date this decision becomes final,
the agency shall give the complainant a notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
his claim for compensatory damages<4> within forty-five (45) calendar
days of the date the complainant receives the agency's notice. The
agency shall complete the investigation on the claim for compensatory
damages within seventy-five (75) calendar days of the date this decision
becomes final.<5> Within one hundred (100) calendar days of the date this
decision becomes final, the agency shall issue a final decision pursuant
to 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified as 29 C.F.R. �
1614.110) regarding the complainant's entitlement to compensatory damages.
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide training to all responsible management
officials in the requirements of Title VII against sex discrimination.
Documentation evidencing completion of such training shall be submitted
to the Compliance Officer within thirty (30) calendar days thereafter.
4. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall consider taking appropriate disciplinary action
against the responsible management officials. Documentation evidencing
the taking of any such action or the agency's reasons for not taking any
such action shall be submitted to the Compliance Officer within thirty
(30) calendar days thereafter.
5. The agency shall post at the Indian Health Service, Chinle Service
Unit, Arizona,<6> copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty
(60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer within ten (10) calendar days of
the expiration of the posting period.
6. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 30, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission ("EEOC") dated _______________ which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 2000e et seq., has occurred at the Department
Health and Human Services, Indian Health Service, Chinle Service Unit,
Arizona (hereinafter "the Chinle Service Unit").
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Chinle Service Unit supports and will comply with such Federal law
and will not take action against individuals, because they have exercised
their rights under law.
The Chinle Service Unit has been found to have discriminated against an
employee because of his sex (male) by failing to select him for a GS-7/9
Inventory Management Specialist position in October 1993. As a result,
the agency has been ordered by the EEOC to award the position to the
employee retroactively with back pay, interest and other benefits, and to
award him appropriate compensatory damages and attorney's fees. Further,
the agency has been ordered to provide training in the requirements of
Title VII to the responsible management officials at the Chinle Service
Unit. The Chinle Service Unit will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The Chinle Service Unit will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
______________________________
Date Posted: ___________________________
Posting Expires: _______________________
1On 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.
2Footnotes 3 and 6 point to the adjustment of some inadvertent errors
in the previous decision.
3The previous decision inadvertently indicated that the Chinle Service
Unit was located in New Mexico. It is located in Arizona.
4As noted in this decision, the complainant's travel expenses between
Zuni and Chinle, and between Sacaton and Chinle, as well as his expenses
for maintaining a second home, shall be considered by the agency as a
part of the compensatory damages claim.
5In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. It based this assessment, inter alia, on a review of the
statutory provisions of the Civil Rights Act of 1991 in relation
to one another and on principles of statutory interpretation which
require statutes to be interpreted as a whole. In particular, the
Commission discussed the meaning of the statute's definition of the term
"complaining party" and the significance of the reference to the word
"action" in Section 102(a). In addition to the specific reasons set
forth in Jackson for this holding, Section 2000e-16(b) (Section 717) of
the Civil Rights Act of 1964 (42 U.S.C. � 2000e et seq.) (CRA) conveyed
to the Commission the broad authority in the administrative process
to enforce the nondiscrimination provisions of subsection (a) through
"appropriate remedies". Similarly, in Section 3 of the Civil Rights Act
of 1991 (CRA of 1991), Congress refers to its first stated purpose as
being "to provide appropriate remedies for intentional discrimination
and unlawful harassment in the workplace", thereby reaffirming that
authority. Consequently, it is our view that in 1991, Congress clearly
intended to expand the scope of the "appropriate remedies" available
in the administrative process to federal employees who are victims
of discrimination. Moreover, in Section 717(c) of the CRA, the term
"final action" is used to refer to administrative decisions by agencies
or the Commission, as distinguished from the term "civil action";
used to describe the rights of employees after such final action
is taken. Therefore, the Commission reaffirmed the holding therein .
See Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390
and 01960518 (April 27, 1998).
6The previous decision inadvertently indicated that the notice must
be posted at the Indian Health Service in Zuni, New Mexico. The EEOC
Administrative Judge found that the discrimination occurred in the Indian
Health Service, Chinle Service Unit, and the previous decision upheld
the finding of discrimination.