Rebecca S. Jackson, Complainant,v.Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionSep 26, 2007
0120073269 (E.E.O.C. Sep. 26, 2007)

0120073269

09-26-2007

Rebecca S. Jackson, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.


Rebecca S. Jackson,

Complainant,

v.

Michael O Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120073269

Agency No. HHS-IHS-0317-2007

DECISION

Complainant filed an appeal with this Commission from the agency's

decision dated June 20, 2007, 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. Upon

review, the Commission finds that complainant's complaint was improperly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely filing

of the formal complaint. In her complaint, complainant alleged that

she was subjected to discrimination on the basis of sex (female) when:

1. On January 25-27, 2005, M1 invited complainant to his room to

drink more beer during the Business Office Manager conference in Tucson,

Arizona;

2. On February 2005, M1 gave complainant a diamond bracelet at the

Hospital parking lot;

3. On July 21 -22, 2005, M1 mentioned how much he wanted to be with

complainant during the OIT meeting in Albuquerque, New Mexico;

4. On October 23-27, 2005, M1 asked to meet with complainant in

the evening during NACA/RPMS training in Flagstaff, Arizona;

5. On June 13, 2006, M1 joined complainant at the grill for dinner

and drinks and M1 became upset when complainant prepared to leave;

6. On June 12-16, 2006, M1 requested to borrow $20 for gas.

On June 16, 2006, M1 called complainant to discuss why she did not call

him back and accused her of being rude during the Advance Third Party

Billing/Accounts Receivable;

7. On June 21, 2006, M1 asked where complainant was staying and

then called complainant to have drinks with him during the OIT meeting

in Albuquerque, New Mexico;

8. On August 8, 2006, M1 stated that complainant's mother-in-law

called his residence about complainant's excessive travel and overtime

work;

9. On October 30, 2006, M1 called complainant into his office to

discuss the two supervisors complaining about the status of her work;

10. On November 13, 2006, M1 informed complainant that she was seen

in another part of the hospital with an individual during work hours,

plus someone saw complainant eating lunch after 1:00 p.m.; M1 also told

complainant that she was not to request leave by calling in for the

purpose of taking leave for the rest of the school semester;

11. On November 21, 2006, M1 instructed complainant to go to ACU

and give them some more blank applications, but not to tell them they

need to redo it, and to tell them that "we need to renew it" instead;

12. On November 22, 2006, M1 informed complainant that she will not

be running reports anymore. M1 also told her that her name was all

over the hospital. M1 questioned complainant about her relationship

with another male employee at the Hospital. M1 asked complainant why

she did not pursue a formal complaint against another male employee.

M1 also told complainant that the security guards heard on the police

scanner that complainant's children called the police to report that

complainant was drunk. At 4:10 p.m., M1 asked complainant to return the

diamond bracelet. At 5:15 p.m., a co-worker informed complainant that

M1 had said that M1 was disappointed in complainant and that complainant

is doing a "half-assed job;"

13. On December 13, 2006, M2 told complainant that he heard that

complainant's performance was suffering due to her drinking and M1 wants

to demote complainant, plus complainant was leaving her husband for M2.

In its final decision, the agency states that complainant received

the notice of right to file a formal complaint on February 13, 2007.

The agency also notes that complainant filed her complaint on February 28,

20071, which is the 15th day, and therefore, within the limitation period.

See 29 C.F.R. � 1614.106.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED. We REMAND the complaint to the agency for further

processing as directed herein.

ORDER (E0900)

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 (K0501)

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 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 (M0701)

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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 26, 2007

__________________

Date

1 On appeal, complainant states that she both mailed her complaint on

February 27, 2007, and also hand delivered the complaint to the agency the

next day. We note that counting from either date renders complainant's

complaint timely filed.

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0120073269

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120073269