0520120159
02-28-2012
May Chen, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
May Chen,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520120159
Appeal No. 0120113914
Agency No. HHSOS00462011
DENIAL
The Agency timely requested reconsideration of the decision in May
Chen v. Dep’t of Health & Human Services, EEOC Appeal No. 0120113914
(November 3, 2011). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. §
1614.405(b).
BACKGROUND
From 2005 to 2010, Complainant applied for 18 positions with the
Agency, but was not selected for any of them. Throughout this time,
she attempted to allege that the nonselections were discriminatory by
contacting and meeting various personnel at the Agency’s local and
headquarters EEO office, the Commission’s Los Angeles District Office,
and the Commission’s Office of Federal Operations.
On August 11, 2011, the Agency dismissed Complainant’s complaint
of discrimination regarding the 18 nonselections solely because she
failed to initiate contact with an EEO counselor within 45 days of
the nonselections. The Agency reasoned that the alleged discriminatory
nonselections occurred between 2005 and February 2010, but Complainant
initiated EEO counselor contact on March 21, 2011, which was beyond the
45-day limitation period.
The previous decision determined that the Agency erred in dismissing the
complaint on the grounds of untimely EEO counselor contact. The previous
decision found that Complainant had been in contact with various Agency
EEO officials on a continuous basis from May 2005 through March 2011,
alleging a series of discriminatory nonselections that occurred between
2005 and February 2010. The Commission also noted that Complainant
zealously pursued her rights and excused some of her procedural errors,
such as failing to file a formal complaint when the Agency indicated
that if she were to file a formal complaint, it would be dismissed.
CONTENTIONS ON RECONSIDERATION
In its request for reconsideration, the Agency argues that claims 1 –
12 should be barred as untimely because Complainant failed to file formal
complaints within 15 days of receiving notices, according to 29 C.F.R. §
1614.106(b).1 Moreover, the Agency argues that claims
1 – 12 should be barred under the doctrine of laches because Complainant
failed to diligently pursue these claims (file formal complaints) after
the Agency properly notified Complainant on April 11, 2008 and April 1,
2009 of her right to file formal complaints.
The Agency next argues that claims 13 – 18 should be dismissed
for failure to timely contact an EEO counselor within 45 days of the
nonselections. In addition, the Agency also argues that these claims
should be barred under the doctrine of laches because Complainant
failed to diligently pursue these claims (contact the EEO office to
file a formal complaint) after an unsuccessful attempt at alternative
dispute resolution.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. We note that the sole issue before the Commission in the
previous decision was whether the Agency erred in dismissing the complaint
for untimely initiating contact with an EEO counselor on March 21, 2011.
The Agency did not file a brief in opposition at that time.
In its request for reconsideration, the Agency attempts to raise new
grounds for dismissing the complaint, such as Complainant’s failing
to timely file a formal complaint, and failing to diligently pursue
her claims. The Commission has long held, however, that a request
for reconsideration is not a vehicle by which an agency may raise new
grounds to dismiss a complaint. Gray v. Dep’t of the Army, EEOC
Request No. 05950495 (June 29, 1995); Parra v. Dep’t of Housing
and Urban Development, EEOC Request No. 05970589 (Aug. 11, 1998)
Therefore, we decline to examine these alternate grounds for dismissal
on reconsideration.
The decision in EEOC Appeal No. 0120113914 remains the Commission's
decision. There is no further right of administrative appeal on the
decision of the Commission on this request. The Agency shall comply
with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims 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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___2/28/12_______________
Date
1 We note that the Agency’s brief references a non-existent regulation:
29 C.F.R. § 1604.106(b). The Commission will assume that the Agency
meant 29 C.F.R. § 1614.106(b).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520120159
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120159