0120111135
01-20-2012
Dennis S. Kaplan, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency.
Dennis S. Kaplan,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Appeal No. 0120111135
Agency No. HHS-HRSA-0375-2010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 14, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Information Technology Specialist in Rockville, Maryland. On July 6,
2010, Complainant contacted the EEO Counselor. When the matter could not
be resolved informally, Complainant was issued a Notice of Right to File
a Formal Complaint. On September 1, 2010, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (White) and sex (male) when:
1. From March 2009 to September 2009, Complainant was subjected to sexual
harassment and a hostile work environment, and
2. He was terminated from his position effective September 11, 2009.
The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2)
for untimely EEO Counselor contact. The Agency issued Complainant’s
termination effective September 9, 2009. The Notice of Termination
provided Complainant with the timeframes for contacting an EEO Counselor
to file an EEO complaint as well as for filing an appeal with the Merit
Systems Protection Board (MSPB). The Agency noted that Complainant filed
a mixed case appeal with the MSPB on March 25, 2010. The Agency stated
that the matter was dismissed on April 23, 2010, for lack of jurisdiction.
Complainant contacted the EEO Counselor in July 2010. The Agency found
that Complainant’s contact was well beyond 45 calendar days. As such,
the Agency dismissed the matter pursuant to 29 C.F.R. §1614.107(a)(2).
Complainant appealed asserting that he could not timely contact the
EEO Counselor due to a serious mental condition. Complainant provided
supporting letters from his sister and his friend. Further, Complainant
indicated that the time frame was too short for him to respond to the
situation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c). We note that when the MSPB dismissed Complainant’s
appeal for lack of jurisdiction, by operation of 29 C.F.R. §1614.302(b),
the Agency was required to process his allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. §1614.105 et seq. The Agency
should have notified Complainant of the right to contact an EEO counselor
within forty-five (45) days of receipt of the MSPB’s dismissal decision,
and to file an EEO complaint, subject to §1614.107. Here, there is no
evidence that the Agency contacted Complainant following the MSBP’s
dismissal of the matter. Therefore, we find that the Agency cannot now
dismiss the matter pursuant to 29 C.F.R. §1614.107(a)(2).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the
Agency’s decision dismissing Complainant’s EEO complaint 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
January 20, 2012
__________________
Date
2
0120111135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111135