Nena Phillips, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0120092995 (E.E.O.C. Nov. 13, 2009)

0120092995

11-13-2009

Nena Phillips, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.


Nena Phillips,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120092995

Agency No. HHSIHS02452009

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 18, 2009, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of race (Alaska Native), sex (female), color

(Dark), disability (not specified), age (60), and reprisal for prior

protected EEO activity when:

1. on January 26, 2009, complainant was not selected for the position

of Human Resource Specialist, GS-201-13/14;

2. complainant was returned to work following a suspension on February

27, 2009, rather than on the February 10, 2009 effective date of the

decision of the Office of Program Integrity and Ethics Staff (PIES)

giving her a conditional Level 5 clearance;

3. on March 30, 2009, complainant was notified that a formal investigation

into her actions would be undertaken; and

4. on April 2, 2009, complainant was informed of her proposed removal

from federal service.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. As to claim (1), the agency determined that

complainant was found not to be qualified for the position in question.

Further, the agency noted that no one was selected for the position.

As such, the agency found that complainant has not shown that she was

aggrieved as to claim (1). As to claims (2), (3), and (4), the agency

indicated that there were not actions in which complainant has indicated

that she has suffered a direct or personal deprivation to be considered

a harm or injury. In making this conclusion, the agency determined

that complainant has not shown that the agency's actions were without

justification. Moreover, with regard to claim (2), the agency also noted

that the claim concerns a security clearance decision which it asserts

"does not fall with the jurisdiction of Title VII."

This appeal followed. Complainant noted, however, that she was

appealing the claims regarding the non-selection and suspension, not

the proposed removal, which she asserted was the subject of another

EEO complaint. Therefore, this decision will only review the agency's

dismissal of claims (1) and (2).1

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

As to claim (1), after a review of the agency's final decision, the

Commission finds that the agency has addressed the merits of complainant's

claim (1) without a proper investigation as required by the regulations.

We find that the agency's articulated reason for the action in dispute,

i.e., that complainant was found not to be qualified for the position in

question goes to the merits of complainant's complaint, and is irrelevant

to the procedural issue of whether she has stated a justiciable claim

under Title VII. See Osborne v. Department of the Treasury, EEOC Request

No. 05960111 (July 19, 1996); Lee v. United States Postal Service,

EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States

Postal Service, EEOC Request No. 05910642 (August 15, 1991). As such,

we find that claim (1) states a claim. As such, the agency's dismissal

of claim (1) was not appropriate.

As to claim (2), we find that complainant has alleged that she was harmed

when she was not returned to work from a suspension in a timely manner.

This claim clearly alleges a concrete employment action which resulted in

cognizable harm to complainant. Therefore, we determine that complainant

has stated a claim as to claim (2). Accordingly, we find that the

agency's dismissal of claim (2) was also not appropriate.

Upon review of the record, we REVERSE the agency's final decision

dismissing claims (1) and (2), and REMAND these claims for further

processing in accordance with the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K1208)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 77960,

Washington, DC 20013. 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 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)

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 (Z1008)

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

November 13, 2009

__________________

Date

1 As the investigation (claim 3) appears inextricably tied to the proposed

removal, we will not address it, as well, in this decision.

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0120092995

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092995