0120073641
10-08-2009
Shaundra Y. Sibert, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Shaundra Y. Sibert,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120073641
Agency No. NIH00342007
DECISION
Complainant filed an appeal on August 17, 2007, with this Commission
from the agency's decision (FAD) dated February 12, 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. For the following reasons, the Commission REVERSES the FAD.
In a complaint dated January 4, 2007, complainant, a Budget Analyst,
at the National Institutes of Health in Bethesda, Maryland, alleged
that she was subjected to discrimination and harassment on the bases of
race (Black) and sex (female) when, on November 3, 2006, she received
a negative 6 month performance review; she was subjected to negative
comments; she was subjected to uneven disciplinary actions; she was
subjected to double standards concerning leave requests and restrictions;
and she was excluded from important budget meetings and emails directly
pertaining to her job.
The agency asserts that on February 12, 2007, it issued a FAD dismissing
the complaint for failure to state a claim, which was mailed to the
addresses of record of complainant and her attorney representative.
On appeal, complainant insists that she never received the FAD.
She provided evidence consisting, in pertinent part, of a Postal
Service tracking document that indicates there was no record of the item
being sent. Subsequent efforts by complainant to receive more detailed
information proved unsuccessful. One possibility provided by the Postal
Service was that "[t]he number was entered incorrectly." Nevertheless,
because there is no evidence indicating when the decision was actually
delivered to complainant, we shall consider the instant appeal to be
timely filed.1
A review of the FAD indicates that the agency framed the complaint as
incorporating only a single incident, namely, complainant's receipt of
a negative 6-month performance review, which, the FAD found, failed to
state a claim. A fair reading of the complaint, however, indicates that
complainant raised claims of disparate treatment and harassment which
included the negative 6-month performance review; but also raised
allegations concerning negative comments from management; uneven
disciplinary actions; management's double standards concerning leave
requests and restrictions; and complainant's exclusion from important
budget meetings and emails directly pertaining to her job. Therefore,
we find that the agency mischaracterized complainant's complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is REMANDED 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
_____10/08/09_____________
Date
1 Complainant notes that since she never received a final decision, she
requested a hearing on June 29, 2007, after 180 days had passed from
the filing of her formal complaint. An AJ from the EEOC's Baltimore
Field Office dismissed the hearing request, on August 27, 2007, based on
a lack of jurisdiction. Presumably, the dismissal was due to the fact
that the agency had already dismissed the complaint in February 2007.
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0120073641
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073641