Terry Perlmutter, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJun 18, 2009
0120083393 (E.E.O.C. Jun. 18, 2009)

0120083393

06-18-2009

Terry Perlmutter, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.


Terry Perlmutter,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120083393

Agency No. HHS-ACF-0058-2008

DECISION

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

decision dated July 15, 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., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

On March 5, 2008, complainant filed a formal EEO complaint, docketed

as HHS-ACF-0005-2008, alleging discrimination on the bases of race

(Caucasian) and age (57) when a coworker was selected for a temporary

120-day promotional detail and she was not. The agency investigated

this claim. Thereafter, complainant requested a hearing before an

EEOC Administrative Judge, which was docketed as EEOC Hearing number

541-2008-00310X. This complaint is currently pending a hearing.

Subsequently, on July 14, 2008, complainant filed another formal EEO

complaint, docketed as HHS-ACF-0058-2008, alleging discrimination on

the bases of race (Caucasian) and age (57) when the same coworker who

was previously selected for the temporary detail was placed into the

detailed position permanently.

On July 15, 2008, the agency dismissed the July 14, 2008 complaint,

finding that it was similar or identical to the March 5, 2008 complaint.

Complainant now appeals the dismissal of this complaint.

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

the agency shall dismiss a complaint that states the same claim that

is pending before or has been decided by the agency or Commission.

We conclude that the agency has not established that the two claims, while

similar, are "identical." See Jackson v. Department of the Air Force,

EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC

Request No. 05960524 (April 24, 1997) (to dismiss complaint as identical,

elements of complaint must be identical to elements of prior complaint in

time, place, incident, and parties). Here, complainant established that

she is alleging two distinctly different agency actions: the failure to

select her for the temporary 120-day detail, and the subsequent failure

to place her in that position permanently. Instead of dismissing the

complaint, the agency should have consolidated the two complaints for

further processing. 29 C.F.R. � 1614.606. Therefore, we REVERSE the

agency's dismissal of this complaint and REMAND it for further processing

as described below.

ORDER

The agency shall submit to the Hearings Unit of the Denver Field Office

the request for a hearing within fifteen (15) calendar days of the date

this decision becomes final. The agency will inform the Denver Field

Office that the Commission has ordered the complaint at issue in this

appeal to be consolidated with the complaint currently pending a hearing,

docketed as Agency Number HHS- ACF-0005-2008, and EEOC Hearing number

541-2008-00310X.

The agency is directed to submit a copy of the complaint file to the

EEOC Hearings Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the consolidated

complaints in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

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 tends 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

June 18, 2009

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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