0120161496
06-24-2016
Hortencia R.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hortencia R.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120161496
Agency No. HHSIHS00302016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's March 8, 2016 decision, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse (LPN) at the Agency's Pine Ridge Hospital facility in Pine Ridge, South Dakota.
On February 5, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (54) when:
1. Complainant was directed to complete the Advanced Cardiac Life support (ACLS) and the Pediatric Advance Life Support (PALS) training; and
2. On or about November 5, 2015, Complainant was not given a raise after duties had been added to her position description, on May 1, 2015, without her notification.
Complainant alleges that she was required to complete training that is required for higher level Registered Nurses and that additional duties were being added in her job description, but she was not given commensurate pay. She also maintains that she should have been offered a permanent position after two appointments, but she was classified in a "temporary Not-to-Exceed (NTE) position for 21 years and was not afforded the opportunity to accumulate retirement benefits because the Agency did not give her a permanent position until 2008. She states that her eOPF record was changed to reflect that she has been a "permanent" employee since her original hire date. She alleges that the Agency discriminated against her on the basis of age and lists one of her issues as "retirement." She states that she has worked for the Agency for 29.8 years. She will have completed 30 years on September 1, 2016, but she was told that she was not eligible for retirement benefits because she had been classified as a temporary employee for 24 years.
The record discloses that Complainant was first sent a notice of right to file a formal complaint on January 11, 2016. The notice advised Complainant that she had to file a formal complaint within fifteen (15) calendar days of its receipt, but that Agency's notice did not include the complaint form. The Agency acknowledged that it had not sent Complainant the necessary form in the first communication. It sent the new notice by certified mail on March 2, 2016.
Complainant explained that she received two certified letters on March 20, 2016. One was the decision dismissing her appeal. The other was the notice of right to file, from the EEO Counselor, which included the formal individual complaint form. Complainant states that she previously faxed the complaint on February 5, 2016, when she was contacted by the new EEO Counselor and asked why her first submission did not include the completed complaint form.
The Agency issued a final decision dismissing the complaint, as untimely filed. The Agency reasoned that Complainant's deadline to have timely filed her EEO Complaint was January 26, 2016 and was therefore ten days late.
This appeal followed. On appeal, Complainant asks that her complaint be accepted because she argues that the Agency did not include the complaint form in its first notice and the delay was not her fault.
ANALYSIS AND FINDINGS
Timeliness
In this case, we find that the Agency failed to meet its burden of establishing that Complainant's complaint filing was untimely. By its own admission, the Agency concedes that its certified mailing, containing the complaint form, was sent on March 2, 2016, not January 11, 2016.
In addition, we find that the Agency's actions (in failing to include the complaint form and issuing multiple notices) caused confusion. Since we find the Agency contributed to the delay by its failure to include the complaint form with its first notice of right to file, we find that Complainant offered an adequate justification to warrant an extension of the time limit for filing the complaint. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
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 (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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