Velda Harrison, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMar 8, 2000
01a00416 (E.E.O.C. Mar. 8, 2000)

01a00416

03-08-2000

Velda Harrison, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Velda Harrison, )

Complainant, )

)

v. ) Appeal No.01A00416

) Agency No.IHS-104-98

Donna E. Shalala, )

Secretary, )

Department of Health and Human Services, )

Agency. )

)

DECISION

On October 15, 1999, the complainant timely filed an appeal with this

Commission from a final decision, dated September 27, 1999, which the

agency issued pursuant to 29 C.F.R. �1614.110.<1> The Commission accepts

the complainant's appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

According to the final agency decision, the complainant alleged in a

complaint filed against the agency's Indian Health Service (IHS) that

the agency terminated her from her Clinical Nurse position based on her

race (Native American), sex (female), and/or disability (recovering from

substance abuse). The decision found that the complainant's request

for a hearing, following her receipt of the Report of Investigation,

was submitted twelve days beyond the thirty-day period for requesting a

hearing. Therefore, the agency issued a final decision on the complaint.

The decision found that the complainant had not established she was

an individual with a disability. The decision also found that the

complainant failed to prove that the agency's articulated reason for her

dismissal was a pretext for discrimination. The decision represented,

however, that in 1998 the agency discharged four employees, all Native

Americans, during their probationary periods. The decision found that

this fact was not probative of discrimination, noting that the record

did not disclose the circumstances of the other three terminations.

On October 20, 1999, the Commission notified the agency that the

complainant had filed this appeal. On November 15, 1999, the Commission

again wrote the agency, instructing that it had to submit a copy of

the complaint file within thirty (30) calendar days of its receipt of

the letter. The agency did not do so.

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.403(e) requires agencies to submit

the complainant file to the Commission's Office of Federal Operations

(OFO) within thirty (30) calendar days of initial notification that the

complainant has filed an appeal.

On January 11, 2000, a notice was issued to the agency to submit a copy

of the complete complaint file to the Office of Federal Operations (OFO)

as required by 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.403(e), or to show good

cause why the agency was unable to do so. The notice specified that

the agency had to submit either a copy of the complete complaint file,

or a written explanation with supporting evidence, within twenty (20)

calendar days of the agency's receipt of the notice. The notice also

described the sanctions the Commission could impose on the agency pursuant

to the Commission's authority under 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.404(c)),

if the agency failed without good cause shown to timely provide the

requested complaint file.

The Commission finds that the agency has neither submitted the complaint

file, nor shown good cause for its failure to submit the requested

complaint file.<2>

Because the agency has not submitted the complete complaint file as

required by 29 C.F.R. � 1614.403(e), and because the agency has not

shown good cause for its failure to do so, it is the decision of the

Commission to sanction the agency pursuant to 29 C.F.R. � 1614.404(c).

The Commission notes that the agency denied the complainant's hearing

request because purportedly it was submitted twelve days late.

The agency also failed to investigate the alleged disparate treatment

which preceded the complainant's termination because, purportedly,

the complainant did not raise the January 25, 1998 incident with the

EEO counselor until May 14, 1998, more than two months after the 45-day

limitation period had expired. Yet more than two months has passed since

the agency was required to submit the complaint file to the Commission.

The Commission finds that, given the totality of the circumstances in this

case, the appropriate course of action following the agency's failure to

timely comply with the Commission's new regulation, and the notices of

November 15, 1999, and January 11, 2000, is to not consider the agency's

timeliness arguments due to lack of evidence in support of its arguments

on the complainant's EEO counselor contact and hearing request.

For the above-stated reasons, it is the decision of the Equal Employment

Opportunity Commission to VACATE the final agency decision and to REMAND

the complaint, including the January 25, 1998 incident, for further

processing in accordance with 29 C.F.R. � 1614.109.

ORDER

1. Within ten (10) calendar days of the date this decision becomes

final, the agency shall submit a request to the appropriate EEOC Office

that this matter be assigned to an Administrative Judge for processing

pursuant to 29 C.F.R. � 1614.109. The agency shall submit a complete

copy of the complaint file with the request letter.

2. If the agency again fails to submit a copy of the complaint file to

the appropriate EEOC Office, the Administrative Judge shall authorize

attorney's fees and costs for the complainant's discovery efforts and

take any other action the Administrative Judge deems appropriate, given

the totality of circumstances in this case.

3. The agency shall send copies of the request letter to the complainant,

the complainant's representative, and the Compliance Officer as referenced

below, on the day that it submits the request letter to the appropriate

EEOC Office.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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

(R1199)

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:

March 8, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to the complainant and the agency on:

DATE Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all Federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding

the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.

2On March 2, 2000, after the time limitation for the complaint file

submission had passed, a Commission employee contacted the agency's EEO

Office and inquired whether the file had been submitted. The Commission

was informed that the file had not yet been obtained from the agency's

IHS.