01A30436
06-02-2004
Juanita Hill, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Juanita Hill v. Department of Health and Human Services,
01A30436
June 4, 2004
.
Juanita Hill,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A30436
Agency No. CDC-NCEH-015-2002
DECISION
Pursuant to 29 C.F.R. � 1614, the Commission dismisses the above-entitled
matter. Complainant was employed as a GS-4 Supply Clerk in a Georgia
facility of the agency. In July 2001, the agency reassigned complainant
to a GS-4 Supply Clerk position in another office under a different
supervisor. Complainant refused to report to her new assignment. In a
letter dated August 10, 2001, the agency informed complainant that she
would be charged eight hours of absence without leave (AWOL) for each
day that she failed to report to her new assignment and that removal
would be proposed. Shortly thereafter, complainant notified the agency
in writing that she would not report to her new assignment because the
environment was hostile as a worker in that office struck her 18 years
earlier. The agency charged complainant as AWOL as of August 10 and
proposed her removal on August 23, 2001, for insubordination and AWOL.
Complainant responded to the proposal by reiterating the same concerns.
In a letter dated October 18, 2001, the agency found that the reasons for
the proposed removal were sustainable, but it would mitigate the proposal
to a suspension to be served from October 25, 2001 through November 22,
2001 in consideration of complainant's lengthy Federal service. The
October 18 letter informed complainant of her right to file either an
appeal with the Merit Systems Protection Board (MSPB), a complaint through
the administrative EEO process, or a grievance with the incumbent union.
On December 29, 2001, complainant filed a formal EEO complaint alleging
that the agency discriminated against her based on reprisal for prior
EEO activity when it issued disciplinary actions to her in 2001.
Specifically, complainant alleged that the agency charged her as AWOL
and issued her a 30-day suspension due to the AWOL charge for refusing
to be subjected to a hostile work environment.
Following an investigation, the agency issued a final agency decision
(FAD) finding that complainant failed to establish a prima facie case of
discrimination or show pretext.<1> The agency informed complainant of
her right to file an appeal of the FAD with the MSPB. Complainant filed
the instant appeal with the EEOC.
Because the 30-day suspension is a matter appealable to the MSPB<2> and
complainant filed an EEO complaint containing the matter, the complaint
is a �mixed case complaint�. 29 C.F.R. � 1614.302(a). Pursuant to 29
C.F.R. � 1614.302(d), the appeal of a �mixed case complaint� should be
filed with the MSPB and not the EEOC, therefore, complainant must appeal
the matter to the MSPB.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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. 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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 2, 2004
__________________
Date
1We note that the agency accepted complainant's
complaint as containing two claims and found that the claims were
inextricably intertwined.
2See Equal Employment Opportunity Management Directive for 29 C.F.R. �
1614 (EEO MD-110), 4-3.