01981692
06-26-1995
Mary W. McIntosh, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Mary W. McIntosh v. Department of Health and Human Services
01981692
Mary W. McIntosh, )
Appellant, )
)
v. ) Appeal No. 01981692
) Agency No. ORSEEO960029
)
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
The Commission finds that the agency erred, in part, in its December 1,
1997 decision which dismissed six of the allegations of appellant's
complaint, on the grounds that they raised the same claims that are
pending before or have been decided by the agency or the Commission,
untimely EEO counselor contact and failure to state a claim pursuant to
the provisions of 29 C.F.R.�1614.107(a) and (b).
Appellant alleged that she had been discriminated against on the basis
of reprisal for prior EEO activity when: (1) in June or July 1994,
her supervisor tried to take away her responsibilities as the Program
Administrative Officer and she was not given the same opportunity to
rotate through the Acting Program Director's position as the other
Administrative Officers; (2) her effort to assist a new Heights Program
student was allegedly thwarted by her supervisor in November 1994;
(3) in March 1995, comments were written in her 1994 performance
evaluation rating about people under her responsibility being accused
of fraud (altering their time cards); (4) on or about November 1994,
and continuing, her new supervisor created a hostile work environment
by engaging in the following actions: not meeting with appellant to
discuss her work when she arrived, keeping her out of the loop of office
matters impacting her staff, treating her disrespectfully and verbally
abusing her, telling other employees not to interact with her, telling
managers to bypass her with their requests, removing assignments from her,
reducing her office space, and reassigning her to the engineering side
from the public works side of the Division of Engineering Services; (5)
she received a letter of warning concerning her conduct on June 23, 1995;
(6) she was denied the training course "Determining Price Reasonableness"
and she was forced to cancel another training course "Writing Clearly"
on or about June 26, 1995; (7) she requested a reassignment on or about
August or September 1995, and her second-line supervisor would only
agree to reassign her to a GS-07 position; (8) she received an official
reprimand on December 15, 1995; and, (9) she was required to submit a
leave slip for going one half hour past her lunch hour while she was
consulting with her EEO representative on December 14, 1995.
The agency issued its final decision and accepted allegations (4), (8)
and (9) for investigation. Allegations (1), (2) and (3) were dismissed
on the grounds that they raised the same claim that had been alleged in
a prior EEO complaint. Allegations (5) and (6) were dismissed on the
grounds of untimely EEO counselor contact. Allegation (7) was dismissed
on the grounds of failure to state a claim.
A review of the record shows that on September 6, 1996, the agency
accepted allegations (1) through (8) of appellant's complaint in Agency
Case No. NIH-035-96. A review of the accepted allegations in said case
persuades the Commission that allegations (1), (2) and (3) of the present
complaint were properly dismissed by the agency on the basis that they
raised the same claim already pending before the agency.
Allegations (5) and (6)<1> were dismissed on the grounds of untimely
EEO counselor contact. The record shows that appellant sought EEO
counseling on January 18, 1996. The Commission has held that where
there is an issue of timeliness, the agency always bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). Regarding allegations (5) and (6) the
agency has met its burden. Accordingly, the dismissal of allegation
(5) and part of allegation (6) was proper and is AFFIRMED.
Allegation (7) was dismissed by the agency on the basis of failure
to state a claim after finding that "the record shows that management
did make attempts at finding appellant another position, however, no
suitable position was found for her. Appellant has failed to show that
she was denied the reassignment and was harmed". We disagree. The agency
should have investigated this allegation not dismissed it for failure
to state a claim: the only questions for the agency to consider are
whether appellant claims that she is aggrieved and whether the complaint
alleges employment discrimination on a basis covered by EEO statutes.
If the answer is yes, then the agency must accept the complaint for
processing, regardless of what it thought of the merits. Odoski v.
Department of Energy, EEOC Appeal No. 01901496 (April 16, 1990).
Accordingly, allegation (7) was improperly dismissed by the agency.
The final agency decision is hereby MODIFIED. Allegation (7) is REMANDED
for further processing in accordance with this decision and applicable
regulations.
ORDER
The agency is ORDERED to process allegation (7) pursuant to the provisions
of 29 C.F.R.�1614.108. The agency shall acknowledge to the appellant that
it has received these allegations within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request. A copy of the agency's letter of
acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 In the Agency's Response to Complainant's Letter of Appeal the agency
states that it made a mistake regarding allegation (6). The agency
determined that the issue concerning the training course "Determining
Price Reasonableness" on June 26, 1995, was properly dismissed on the
grounds of untimely EEO counselor contact. However, the issue concerning
the training course "Determining Price Reasonableness" on June 26, 1996,
was timely and accepted for further processing.