01994798
02-22-2002
Angela Flores, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Angela Flores v. Department of Health and Human Services
01994798
February 22, 2002
.
Angela Flores,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01994798
Agency No. CC-01-96
Hearing No. 350-98-8151x
DISMISSAL
Complainant timely initiated an appeal from the agency's final decision
dated April 16, 1999 concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. (1994 & Supp. V 2000). The appeal is accepted pursuant to 29
C.F.R. � 1614.405.
Complainant, a pharmacist with the Public Health Service stationed at
the Immigration and Naturalization Service medical unit in Florence,
Arizona, filed a formal EEO complaint with the Department of Health
and Human Services on December 1, 1995, alleging that in 1995 she was
sexually harassed by the Chief Medical Officer of the Public Health
Service, and that the Public Health Service's decision to escort her
through unsecured public areas, suspend and discharge her was based
on sex discrimination and retaliation for opposing the Chief Medical
Officer's sexual harassment. Following an investigation of these
allegations pursuant to 29 C.F.R. 1614.108, complainant requested that a
hearing be held before an Equal Employment Opportunity Commission (EEOC)
administrative judge (AJ). At the December 1-3, 1998 hearing, the agency
moved to dismiss the matter, arguing that the Public Health Service Act,
enacted November 13, 1998, provided that all active service commissioned
officers of the Public Health Service were considered as active military
service officers for purposes of discrimination laws. 42 U.S.C. � 213(f)
(1994 & Supp. V 2000). The agency argued that consequently, the EEOC
lacked jurisdiction over this complaint. The AJ denied the agency's
motion to dismiss, held the hearing and on February 17, 1999, issued a
decision concluding that the EEOC had jurisdiction over the complaint,
and finding no sex discrimination or sexual harassment in the decisions
to suspend and discharge complainant and in the decision to escort her
through public unsecured areas, but finding that the agency retaliated
against complainant by trying to restrain her from pursuing the sexual
harassment complaint. On April 16, 1999, the agency issued a final
decision rejecting the AJ's finding of discrimination. This appeal
followed.
On October 13, 2000, the Commission issued a decision in Raymond
v. Department of Health and Human Services, EEOC Appeal No. 01987012,
holding that:
The Public Health Service Act now provides that "[a]ctive service
of commissioned officers of the Service shall be deemed to be active
military service in the Armed Forces of the United States for purposes
of all laws related to discrimination on the basis of race, color,
sex, ethnicity, age, religion, and disability." 42 U.S.C. � 213(f)
(Supp. 2000). The Commission's jurisdiction over complaints by federal
employees does not extend to uniformed military personnel. See 29
C.F.R. � 1614.103(d)(1). Furthermore, we note that in the preamble to
the revised regulations at 29 C.F.R. Part 1614, governing the EEOC's
federal sector complaint process, the Commission noted the amendment by
Congress to the Public Health Service Act and specifically declined to
add the Public Health Service Commissioned Corps to the list of entities
covered by the EEOC Regulations. See Matters of General Applicability,
64 Fed. Reg. 37,644, 37,655 (1999).
Accordingly, we find that the present appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 22, 2002
__________________
Date