0120131949
09-18-2013
Miranda Epps, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Miranda Epps,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120131949
Agency No. HHS-CDC-0042-2013
DECISION
On April 1, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 28, 2013, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst/Financial Management Analyst (Contractor) at the Agency's Centers for Disease Control and Prevention (CDC), Financial Management Office, in Atlanta, Georgia.
On December 14, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her disability (colon cancer) and reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. On October 5 and 7, 2011, her Agency supervisor told her position with the Agency would be eliminated if she took medical leave to obtain surgery and treatment for colon cancer;
2. The Agency did not select/transfer her to a Budget Analyst position for which she applied around September 2011, even though the above occurred;2
3. Upon her return on November 10, 2011, from surgery to treat her colon cancer, she learned that her duties at the Agency were removed and reassigned;
4. The Agency failed to reasonably accommodate her disability regarding lifting and packing for an office move;
5. She was terminated from the Agency on December 15, 2011;
6. The Agency did not rehire her to her former position of Budget Analyst/Financial Management Analyst (Contractor), which was posted through her former private employer who had jointly employed her with the Agency. The position was filled around February 2012; and
7. The Agency failed to hire her into other positions for which she was qualified, including an Agency position for which the above private employer rejected her around October 16, 2012.3
The Agency dismissed the complaint for failure to timely file the complaint. It reasoned that Complainant's attorney received the notice of right to file a complaint on December 3, 2012, but the postmark showed the complaint was not filed December 22, 2012, beyond the 15 calendar day time limitation. The record the Agency submitted did not contain a copy of the postmark.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106. The latter regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
On appeal Complainant submits documentation proving that she mailed her complaint to the Agency on December 14, 2012. The documentation includes certified mail receipt 7012 2210 0002 2329 8515 postmarked December 14, 2012, and an email from the United States Postal Service reflecting that it accepted and dispatched this certified letter on December 14, 2012. In its FAD, the Agency wrote the complaint was sent by certified mail with the above number. Since Complainant's attorney received the notice of right to file the complaint on December 3, 2012, the complaint filing on December 14, 2012, was timely.
On appeal, Complainant also argues that the time limit for her to initiate EEO counseling should be extended, and that she was jointly employed by the Agency and Carter Consulting, Inc. (CCI). Some information on these matters was raised prior to the Agency's FAD. Because the Agency did not dismiss the complaint for failure to state a claim on the grounds that Complainant was not an employee of the Agency or failure to timely initiate EEO counseling, we need not address these matters.
The FAD is REVERSED.
ORDER
The Agency is ordered to process the seven claims, set forth in the body of this decision, in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received these 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
September 18, 2013
__________________
Date
1 Complainant's attorney received the FAD on March 4, 2013, and filed an appeal with the EEOC on April 1, 2013. The EEOC did not receive the appeal because it was mailed to our previous address. The Agency provided this outdated address in both the appeal rights in the FAD and an outdated appeal form. Accordingly, we consider April 1, 2013, to be the date of the appeal. The appeal with the outdated address was returned to Complainant's attorney by the United States Postal Service on April 22, 2013, and she re-filed it with the EEOC the next day.
2 The position is referenced in paragraph 12 of the complaint, and other places in the record. While the Agency did not specifically define this issue, it was within the scope of the issues it defined.
3 This definition of the complaint provides more detail than the Agency's definition.
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0120131949
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131949