0120112328_rev
10-03-2011
____________________, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Centers for Medicare and Medicaid Services) Agency.
____________________,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Centers for Medicare and Medicaid Services)
Agency.
Appeal No. 0120112328
Agency No. HHS-CMS-0390-2010
DECISION
On April 6, 2011, Complainant filed an appeal from the Agency’s February
25, 2011, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 Commission accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
at the Agency’s Centers for Medicare and Medicaid Services facility in
Baltimore, Maryland.
On August 18, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity when:
1. on May 11, 2010, the Acting Director issued Complainant a decision
to suspend him for 27 days; and
2. from May to August 2010, Complainant was subjected to a hostile
work environment. In support of his claim of harassment, Complainant
indicated that the following events occurred:
a. On June 25, 2010, the Director and Deputy Director selectively applied
the Agency’s time and attendance policies to Complainant requiring him
to follow Episodic Flexi-place procedures to document his time and work
following an off-site conference.
b. On July 14, 2010, the Director and Deputy Director did not approve
Complainant’s request to work beyond his duties hours to complete a
conference call.
c. On July 29, 2010, the Director and Deputy Director excluded Complainant
from a meeting with the Office of the Administrator regarding Power
Mobility Devices.
The Agency the matter as a mixed case complaint and processed pursuant
to the procedures in 29 C.F.R. § 1614.302. Following its investigation
into the claims, the Agency issued a final decision on February 25, 2011,
concluding Complainant failed to prove he was subjected to discrimination
with regard to the suspension or his harassment claim. The Agency noted
in its decision that, as to the suspension claim, Complainant had appeal
rights to the MSPB, not the EEOC. Further, as to the harassment claim,
Complainant was given appeal rights to the Commission.
Complainant appealed the Agency’s final decision to the Commission. On
appeal, Complainant asserted that the Agency failed to provide him with
his right to a hearing before an EEOC Administrative Judge (AJ) with
respect to claim (2). Complainant included a copy of the letter that
accompanied the Agency’s Report of Investigation (ROI). The letter
indicated that the Agency would issue its decision which Complainant
could appeal to the MSPB.
ANALYSIS AND FINDINGS
As an initial matter, we note that the Agency provided Complainant with
appeal rights regarding the suspension raised in the suspension claim
to the MSPB, not the EEOC. Therefore, the Commission will not address
the Agency’s final decision regarding that claim. The Commission shall
focus this decision on the Agency’s processing of harassment claim.
As to the harassment claim, the record shows that Complainant received the
report of investigation informing him that his complaint as a whole was
mixed and that, once the Agency issued its final decision, Complainant
could appeal the matter to the MSPB for a hearing. However, the Agency
issued its final decision on the merits of harassment claim providing
him with appeal rights to the EEOC without first providing him with an
opportunity to request a hearing before an EEOC AJ with respect to the
harassment claim. Upon review of the record, we find that although the
Agency correctly identified the harassment claim as a non-mixed claim
with appeal rights to EEOC, it failed to provide Complainant with the
appropriate hearing rights on the claim under 29 C.F.R. § 1614.108(f).
Accordingly, the Agency's final decision finding no discrimination as
to the harassment claim only is VACATED and the complaint is REMANDED
to the Agency for further processing in accordance with this decision
and the ORDER herein.
ORDER
The Agency, within 30 days of the date this decision becomes final, shall
provide Complainant with a copy of the investigative file and a notice of
his right to a hearing pursuant to 29 C.F.R. § 1614.108(f) with regard
to Complainant’s claim of harassment. Following the issuance of this
notice, the Agency shall process Complainant's complaint in accordance
with applicable EEOC regulations.
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
October 3, 2011
__________________
Date
2
0120112328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112328