Yeu Tong Sit, Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 12, 1999
01983711 (E.E.O.C. May. 12, 1999)

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