01A34052_r
07-25-2003
Judith D. Accetta, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Judith D. Accetta v. Department of Health and Human Services
01A34052
July 25, 2003
.
Judith D. Accetta,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A34052
Agency No. IHS-056-00
DISMISSAL OF APPEAL
Complainant appealed to this Commission from the agency's June 6,
2003 final decision finding that complainant had not been subjected
to unlawful discrimination. In her complaint, complainant alleged
discrimination on the bases of national origin (Italian and Latin from
Puerto Rico), sex (female), age, and reprisal for prior EEO activity when:
Prior to February 7, 1999, complainant was harassed by a female coworker;
In July 1999, complainant was detailed from the Intensive Care Unit to
the Outpatient Center;
In August 1999, complainant was reassigned to the Obstetrics Department;
On March 3, 2000, complainant's supervisor issued her a memo regarding
her distinct lack of progress;
On March 16, 2000, the Director of Nursing threatened complainant with
termination;
On April 5, 2000, complainant was reassigned to the Pediatrics Department;
On April 5, 2000, complainant was not allowed to perform her nursing
duties in Pediatrics;
On April 19, 2000, complainant was threatened with termination;
On April 19, 2000, the Director of Nursing stated that �you should return
to Puerto Rico, you would be better off;�
On May 12, 2000, complainant was reassigned to the Nursing Education
Office; and
On April 20, 2000, (effective June 4, 2000), complainant was
constructively discharged (forced resignation) due to the alleged
harassment.
The agency identified this matter as a mixed case complaint.
In mixed-case complaints, the agency must advise a complainant, at the
time it issues a final decision on the merits of complainant's claim,
of the right to appeal to the Merit Systems Protection Board (MSPB),
not EEOC. 29 C.F.R. � 1614.302(d)(3). Although the agency properly
notified complainant of her right to pursue her claim with the MSPB, and
instructed her that she may not appeal to EEOC, complainant improperly
filed an appeal with this Commission. If the MSPB determines that it
lacks jurisdiction over the matter, then the agency must recommence
processing of the matter as a non-mixed EEO complaint. 29 C.F.R. �
1614.302(c)(2)(ii). Therefore, the Commission does not have jurisdiction
over complainant's appeal; her appeal is DISMISSED.<1>
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
July 25, 2003
__________________
Date
1The Commission notes that it previously
addressed procedural issues in the present complaint. See Accetta
v. Department of Health and Human Services, EEOC Appeal No. 01A12800
(May 23, 2002). While the Commission may adjudicate procedural issues
in mixed case complaints, it may not accept a direct appeal from the
final agency decision on the merits of complainant's claims.