0120073269
09-26-2007
Rebecca S. Jackson, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Rebecca S. Jackson,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120073269
Agency No. HHS-IHS-0317-2007
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated June 20, 2007, dismissing her 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. Upon
review, the Commission finds that complainant's complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely filing
of the formal complaint. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of sex (female) when:
1. On January 25-27, 2005, M1 invited complainant to his room to
drink more beer during the Business Office Manager conference in Tucson,
Arizona;
2. On February 2005, M1 gave complainant a diamond bracelet at the
Hospital parking lot;
3. On July 21 -22, 2005, M1 mentioned how much he wanted to be with
complainant during the OIT meeting in Albuquerque, New Mexico;
4. On October 23-27, 2005, M1 asked to meet with complainant in
the evening during NACA/RPMS training in Flagstaff, Arizona;
5. On June 13, 2006, M1 joined complainant at the grill for dinner
and drinks and M1 became upset when complainant prepared to leave;
6. On June 12-16, 2006, M1 requested to borrow $20 for gas.
On June 16, 2006, M1 called complainant to discuss why she did not call
him back and accused her of being rude during the Advance Third Party
Billing/Accounts Receivable;
7. On June 21, 2006, M1 asked where complainant was staying and
then called complainant to have drinks with him during the OIT meeting
in Albuquerque, New Mexico;
8. On August 8, 2006, M1 stated that complainant's mother-in-law
called his residence about complainant's excessive travel and overtime
work;
9. On October 30, 2006, M1 called complainant into his office to
discuss the two supervisors complaining about the status of her work;
10. On November 13, 2006, M1 informed complainant that she was seen
in another part of the hospital with an individual during work hours,
plus someone saw complainant eating lunch after 1:00 p.m.; M1 also told
complainant that she was not to request leave by calling in for the
purpose of taking leave for the rest of the school semester;
11. On November 21, 2006, M1 instructed complainant to go to ACU
and give them some more blank applications, but not to tell them they
need to redo it, and to tell them that "we need to renew it" instead;
12. On November 22, 2006, M1 informed complainant that she will not
be running reports anymore. M1 also told her that her name was all
over the hospital. M1 questioned complainant about her relationship
with another male employee at the Hospital. M1 asked complainant why
she did not pursue a formal complaint against another male employee.
M1 also told complainant that the security guards heard on the police
scanner that complainant's children called the police to report that
complainant was drunk. At 4:10 p.m., M1 asked complainant to return the
diamond bracelet. At 5:15 p.m., a co-worker informed complainant that
M1 had said that M1 was disappointed in complainant and that complainant
is doing a "half-assed job;"
13. On December 13, 2006, M2 told complainant that he heard that
complainant's performance was suffering due to her drinking and M1 wants
to demote complainant, plus complainant was leaving her husband for M2.
In its final decision, the agency states that complainant received
the notice of right to file a formal complaint on February 13, 2007.
The agency also notes that complainant filed her complaint on February 28,
20071, which is the 15th day, and therefore, within the limitation period.
See 29 C.F.R. � 1614.106.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. We REMAND the complaint to the agency for further
processing as directed herein.
ORDER (E0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
September 26, 2007
__________________
Date
1 On appeal, complainant states that she both mailed her complaint on
February 27, 2007, and also hand delivered the complaint to the agency the
next day. We note that counting from either date renders complainant's
complaint timely filed.
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0120073269
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073269