01983711
05-12-1999
Yeu Tong Sit, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Yeu Tong Sit v. Department of Health and Human Services
01983711
May 12, 1999
Yeu Tong Sit, )
Appellant, )
)
v. ) Appeal No. 01983711
)
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal on April 10, 1998 from an agency
decision dated February 20, 1998 denying appellant's request for the
agency (referred to as the "Board" in the decision) to reconsider its
decision of January 13, 1998 denying appellant's appeal. There is no
January 13, 1998 decision in the record, but there is a January 16, 1998
decision in the record from the agency which is signed by the Executive
Secretary, Board for Correction of PHS Commissioned Corps Records.
Appellant states on appeal that appellant is appealing the January 16,
1998 decision. It appears to the Commission that the agency's reference
in the February 20, 1998 decision to the January 13, 1998 decision
was an error and that the agency meant to reference the January 16,
1998 decision. The agency stated in the January 16, 1998 decision that
appellant's appeal was denied.
The record also contains a decision from the agency dated September
21, 1995 concerning a complaint of discrimination filed by appellant on
September 3, 1992 alleging that appellant was discriminated against on the
bases of race, national origin, and retaliation. The agency found in the
September 21, 1995 decision that appellant was not discriminated against.
The agency provided the following appeal rights in the September 21,
1995 decision:
Commissioned Corps Officers do not have the right to appeal a Final
Decision to the Equal Employment Opportunity Commission or to the
U.S. District Court because they are not covered by the Civil Rights
Act of 1964, as amended, or by the Executive Order 11478, as amended.
It is not clear to the Commission if the January 16, 1998 and February
20, 1998 decisions are related to the September 21, 1995 decision or
concern employment discrimination complaints. Furthermore, appellant
may be appealing the September 21, 1995 agency decision. The agency has
not stated on appeal what the agency believes appellant is appealing and
the agency has not explained if the January 16, 1998 and February 20,
1998 decisions are related to the September 21, 1995 decision.
The Commission recently held that "PHS Officers - as employees of
the agency - are covered under Title VII." Guerard v. Department of
Health and Human Services, EEOC Appeal No. 01976658 (Sept. 24, 1998).
Therefore, if the instant appellant is appealing the September 21, 1995
agency decision, then appellant is entitled to have the appeal considered
by the Commission pursuant to 29 C.F.R. �1614.401. Furthermore, if the
January 16, 1998 and February 20, 1998 decisions concern a complaint of
employment discrimination separate from the complaint at issue in the
September 21, 1995 decision, then appellant is entitled to have such an
appeal considered by the Commission pursuant to �1614.401.
The Commission shall remand the matter so that the agency can contact
appellant to clarify whether appellant is appealing the September 21,
1995 decision. On remand the agency shall clarify whether the January 16,
1998 and February 20, 1998 decisions concern a complaint of employment
discrimination separate from the complaint at issue in the September 21,
1995 decision. If the agency determines that appellant is appealing a
decision concerning a complaint of employment discrimination, then the
agency shall process such a complaint pursuant to 29 C.F.R. Part 1614.
The instant matter is REMANDED to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency shall:
Contact appellant to clarify whether appellant is appealing the September
21, 1995 decision.
Clarify whether the January 16, 1998 and February 20, 1998 decisions
concern a complaint of employment discrimination separate from the
complaint at issue in the September 21, 1995 decision.
If the agency determines that appellant is appealing a decision concerning
a complaint of employment discrimination, then the agency shall process
such a complaint pursuant to 29 C.F.R. Part 1614. Within 30 days of
the date this decision becomes final the agency shall issue a letter to
appellant informing appellant which complaints it is processing under
29 C.F.R. Part 1614 or issue a letter to appellant informing appellant
that the agency is not processing any complaints referenced in the
instant Commission decision because appellant is not appealing any
decision concerning a complaint of employment discrimination. If the
agency issues a letter to appellant informing appellant that it is not
processing complaints, then the agency shall include appeal rights to
the Commission.
A copy of the agency's letter informing appellant that the agency is or
is not processing complaints shall be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
May 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations