0420100018
09-21-2010
Gary M. Morin, Petitioner, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.
Gary M. Morin,
Petitioner,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.
Petition No. 0420100018
Appeal No. 0120092626
Agency No. HHS-NIH-0264-2008
DECISION ON A PETITION FOR CLARIFICATION
The Equal Employment Opportunity Commission (EEOC or Commission) docketed an August 30, 2010 petition for clarification to examine the enforcement of an Order set forth in Gary M. Morin v. Dep't of Health & Human Servs., Appeal No. 0120092626 (Aug. 26, 2010). The Commission accepts this petition for clarification pursuant to 29 C.F.R. � 1614.503. Petitioner seeks clarification of the Commission's decision with respect to the Agency's dismissal of claim (4), where he alleged dissatisfaction with the processing of his complaint.
On April 1, 2008, Petitioner filed an EEO complaint alleging fourteen claims of discrimination based on race, sex, sexual orientation, religion, color, disability, and in reprisal for prior protected EEO activity. The Agency dismissed claims (5) - (14) and accepted claims (1) - (4) for investigation. At the conclusion of the investigation, the Agency issued a final decision dismissing claim (4) and finding no discrimination on claims (1) - (4).
Petitioner appealed the Agency's final decision to the Commission, and in Morin, EEOC Appeal No. 0120092626, the Commission modified the Agency's final decision. The Commission affirmed the Agency's dismissal of claim (4). However, the Commission separately noted that the Agency official responsible for the quality of complaints processing was required to add a detailed record of Petitioner's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the instant complaint. EEO Management Directive for Part C.F.R. 1614 (EEO-MD-110), at 5-26 (Nov. 9, 1999). In light of the facts presented and our concern for the integrity of the Agency's EEO process, we ordered the Agency to provide Petitioner with a report of the actions undertaken to resolve his concerns regarding the processing of his complaint, or an explanation of its reason for not taking action, in accordance with the Commission's order. We also noted that the Agency delayed sending a copy of the complaint file to the Commission on appeal and ordered the Agency to include an explanation of its reasons for delaying the submission of the complaint file in its report.
With respect to the remaining claims, the Commission found that the Agency improperly fragmented the complaint. The Commission found that the remaining claims should have been viewed as one on-going claim of harassment. The Commission therefore vacated the Agency's decision with respect to claims (1) - (3) and reversed the Agency's decision with respect to claims (5) - (14). The Commission remanded the hostile work environment claim to the Agency for further processing. Regarding Petitioner's allegation that he was discriminated against based on his sexual orientation, the Commission noted that Title VII's prohibition of discrimination does not include sexual orientation as a basis and that Petitioner did not allege sex stereotyping discrimination.
On August 30, 2010, Petitioner submitted the petition for clarification at issue. He requested that the Commission clarify whether the Agency's dismissal of claim (4) was being affirmed or if the Commission was affirming his "challenge of that dismissal."
ANALYSIS AND FINDINGS
The Commission's regulations provide that the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. 29 C.F.R. � 1614.503(c).
The Commission's previous decision affirmed the Agency's dismissal of claim (4) for alleging dissatisfaction with the processing of Petitioner's complaint. Therefore, the Commission's remand of Petitioner's hostile work environment claim does not include claim (4) because of the Commission's decision to affirm the Agency's dismissal of that claim. Although the Commission's decision ordered the Agency to address Petitioner's allegations regarding the processing of his complaint, this order should not be construed as a reversal of the Agency's dismissal of claim (4) or a decision to affirm Petitioner's "challenge of that dismissal."
Finally, Petitioner states in his petition that the Agency has refused to implement an internal redress procedure for complaints alleging sexual orientation discrimination and that the Agency has been unwilling to provide documentation regarding the subject matter. We reiterate that Executive Order 13087 (May 28, 1998) requires federal agencies to establish an internal redress procedure for complaints of sexual orientation discrimination by civilian employees. Such complaints are investigated, however, by the Office of Special Counsel. See 5 U.S.C. � 1214 et seq.
CONCLUSION
Accordingly, the petition for clarification is GRANTED. The Agency is directed to comply with the Order herein.
ORDER
(1) Within thirty (30) calendar days of the date this decision becomes final, the Agency official responsible for the quality of complaints processing must add a record of Petitioner's concerns, an explanation for the delay in submitting the complaint file to the Commission on appeal, and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. Moreover, the Agency shall provide Petitioner with a report of any actions taken by the Agency to resolve the concerns, or an explanation of its reason for not taking action.
(2) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to Petitioner that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Petitioner a copy of the investigative file and also shall notify Petitioner 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 Petitioner requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Petitioner's request.
(3) A copy of the Agency's letter of acknowledgment to Petitioner, a copy of the notice that transmits the investigative file and notice of rights, and a report of compliance 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 Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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 PETITION FOR ENFORCEMENT
. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
__9/21/10________________
Date
2
0420100018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0420100018