Jim D. Phillips, Complainant, Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 30, 2000
05990118 (E.E.O.C. May. 30, 2000)

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.