0120122395
04-16-2015
Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120122395
Agency No. HHS-IHS-0072-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 26, 2012, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Patient Representative at the Agency's Rapid City Hospital facility in Rapid City, South Dakota.
Complainant contacted the EEO Counselor regarding her claim of harassment based on her disability in retaliation for her prior EEO activity. The EEO Counselor's report indicated that Complainant alleged that she was subjected to harassment and denied reasonable accommodation on October 4 and 19, 2011, and ongoing. Complainant requested that the matter be processed through the Alternative Dispute Resolution (ADR) program. However, management declined the ADR request.
When the matter could not be resolved informally, on December 30, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when. We note that the record provided by the Agency included a copy of an email stating Complainant's wish to file the formal complaint. The email indicated that the formal complaint was attached to the email. However, there was no attachment included in the record provided to the Commission.
On January 31, 2012, the Agency acknowledged Complainant's formal complaint. The Agency submitted a request for additional information by letter dated February 14, 2012, which Complainant received on February 22, 2012. In the letter, the Agency asked Complainant to provide additional information so that it may identify the events raised by her in her complaint. The letter noted that the matter could be dismissed if Complainant failed to respond within 15 calendar days from the date she received the letter pursuant to 29 C.F.R. � 1614.107(a)(7).
When Complainant failed to respond to the letter, the Agency contacted Complainant by email on March 5, 2012. Complainant did not respond to the Agency's request for clarification of claims. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7). The Agency noted that Complainant failed to provide the requested clarification despite the letter dated February 14, 2012, and its email on March 5, 2012. As such, the Agency issued its decision on March 26, 2012, dismissing the complaint.
Complainant appealed. On her appeal form, Complainant stated that she wished to continue her complaint. She stated that she needed to avoid stressful situations including reliving the incidents that took place. She asked that the Commission reverse the Agency's dismissal of the compliant.
ANALYSIS AND FINDINGS
The Commission has held that an agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (Aug. 17, 1990); Brinson v. U.S. Postal Serv, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where a complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has alleged a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv, EEOC Request No. 05970095 (April 23, 1998); Kroten v. U.S. Postal Serv, EEOC Request No. 0590451 (Dec. 22, 1994).
We note that the Agency failed to provide the Commission with a copy of the formal complaint. Therefore, we cannot determine whether Complainant failed to provide sufficient information in her formal complaint for the Agency to process her complaint. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). The Commission therefore determines that the Agency improperly dismissed the instant formal complaint on this ground. However, Complainant is advised to cooperate in the further processing of the formal complaint, or face possible future dismissal for not doing so.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
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 (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
April 16, 2015
__________________
Date
2
0120122395
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122395