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.