0120091067
05-28-2009
Shana R. Bowman,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120091067
Agency No. HHS-OS-0157-2007
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated November 18, 2008, 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.
In a formal EEO complaint, complainant alleged that the agency subjected
her to a hostile work environment, since January 5, 2007, on the bases of
race (African-American), color (Black), and reprisal for prior protected
EEO activity when complainant's supervisor (S1) (1) made comments that
complainant found offensive to her race, parentage, education/training,
and isolated her from her team, (2) on February 23, 2007, issued her a
letter of reprimand citing failure to comply with leave instructions, (3)
did not award complainant a grade and step increase, (4) on July 20, 2007,
closed all of complainant's computer and email accounts, which complainant
learned upon her return from a relative's funeral on July 30 and (5)
charged her annual leave and leave without pay, instead of sick leave
under the Family Medical Leave Act, for the week of July 15 - 21, 2007.
By third party carrier, accompanied by a letter dated August 1, 2008,
the agency sent complainant her report of investigation and notice of
her right to request a hearing before an EEOC Administrative Judge (AJ)
or an immediate final agency decision. The correspondence was sent to
complainant's initial address of record and was returned to the agency
the next day. In a letter dated October 14, 2008, via certified mail,
the agency informed complainant that it would dismiss her complaint if
she did not respond within 15 days. The proposed dismissal letter was
also returned to the agency.
In its November 18 final decision, the agency dismissed complainant's
harassment claim pursuant to 29 C.F.R. � 1614.107(a)(6), stating that
complainant could not be located. The agency stated that complainant was
informed several times that she had a responsibility to keep the agency
aware of her current mailing address, however, she failed to do so.
Further, the agency stated that it informed complainant of the proposed
complaint dismissal if she failed to respond within 15 days of receipt
of the proposal and she failed to respond. The instant appeal from
complainant followed.
On appeal, complainant stated that, on February 4, 2008, she informed
the postal service of her change of address and asked it to forward
her mail as of March 23, 2008; and, on February 5, 2008, she sent the
agency a letter notifying it of her upcoming move and change of address.
Complainant provided a copy of a letter, dated February 5, addressed
to the agency indicating that her address would change as of March 23
and that her telephone numbers and email address would remain the same.
Further, complainant stated that she was informed that the agency would
contact her once her investigation was complete and the final decision
(dismissal) is the only correspondence that was forwarded to her from
the postal service.
EEOC Regulation 29 C.F.R. � 1614.107(a)(6) permits dismissal of an
entire complaint where complainant cannot be located. The provision
requires that the agency make reasonable efforts to locate complainant and
inform complainant that he or she must respond to the agency's notice of
proposed dismissal within 15 days sent to his or her last known address.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that a complaint may
be dismissed where complainant has failed to cooperate in the processing
of the complaint.
Here, based on the evidence of record, we find that the agency has failed
to satisfy its burden of providing evidence to support its dismissal
of complainant's complaint. See generally Gens v. Dep't of Defense,
EEOC Request No. 05910837 (January 31, 1992). Complainant provided
evidence that she informed the agency of her change of address and took
additional steps to ensure that she would receive agency correspondence.
The record reveals that she contacted the agency shortly after receiving
the dismissal. We find that the agency improperly dismissed the instant
complaint. We REVERSE the final agency decision and REMAND the complaint
to the agency for further processing in accordance with this decision
and 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
May 28, 2009
__________________
Date
2
0120091067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091067