0120132586
05-29-2014
Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120132586
Agency No. HHS-IHS-0435-2012
DECISION
On June 17, 2013, the Equal Employment Opportunity Commission's (EEOC or Commission) Oklahoma City Area Office received Complainant's appeal from a final Agency decision (FAD) dated November 21, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The EEOC's Oklahoma City Area Office forwarded Complainant's appeal to this office on June 17, 2013.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Paramedic at the Choctaw Nation Health Services Authority in Talihina, Oklahoma.
On November 5, 2012, Complainant filed a formal complaint alleging that the Choctaw Nation Health Services Authority in Talihina, Oklahoma discriminated against him based on his race (Anglo-Saxon - Non Native American), national origin (United Kingdom), color (Caucasian), and reprisal for prior protected EEO activity when starting in 2012, before or in April 2012, it subjected him to harassment culminating in his forced resignation/constructive discharge on or about July 28, 2012.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was an employee of the Choctaw Nation of Oklahoma, not an employee, applicant or even a contractor with any ties or any relationship with the Agency.
On appeal Complainant argues that the Choctaw Nation is part of the Indian Health Service.
In opposition to the appeal, the Agency argues that Complainant failed to timely file his appeal. It argues that after its first certified mailing of the FAD to Complainant was returned to the Agency, it mailed the FAD again by certified and regular mail on January 7, 2013, and while the certified mailing was returned, the regular mailing was not, and accordingly, Complainant's appeal of June 2013 was untimely filed. The Agency further argues that the Choctaw Nation of Oklahoma is a federally recognized Indian Tribe and the Indian Health Service does not have a hospital or clinic in Talihina.
ANALYSIS AND FINDINGS
The time limit for Complainant to file his appeal with the EEOC was thirty (30) calendar days after his receipt of the FAD. 29 C.F.R. � 1614.402(a). The address the Agency used in the FAD for filing an appeal with this office was more than four years out of date. Given this, we decline to find Complainant's appeal was untimely filed.
EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment.
In its FAD, the Agency found that Complainant was an employee of the Choctaw Nation of Oklahoma, not an employee, applicant or even a contractor with any ties or any relationship with the Agency. In opposition to the appeal the Agency adds that it does not have a hospital or clinic in Talihina, Oklahoma, where Complainant worked. Given the above, in the absence of any documentary evidence from Complainant to the contrary, we find that he was not an employee of the Agency.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
May 29, 2014
__________________
Date
2
0120132586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120132586