01994498_r
06-07-2002
Sandra G. Simpson, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Sandra G. Simpson v. Department of Health and Human Services
01994498
June 7, 2002
.
Sandra G. Simpson,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01994498
Agency No. HRS109-97
Hearing No. 120-98-9411X
DECISION
Complainant appeals the agency's April 20, 1999 decision dismissing
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. Complainant alleges that she was
discriminated against on the bases of age, religion, national origin,
race and sex when:
On January 17, 1997, her immediate supervisor gave her a memorandum that
alleged that her performance was poor and that her assignments were not
completed in a timely fashion;
Since December 1996, she has been embarrassed and ridiculed by her
immediate and second level supervisor because of her religious beliefs;
Since January 17, 1997, she has been required to perform duties that are
not within her job description and are clerical and technical in nature;
Since September 1996, she has been denied the opportunity to participate
in the leave donation program. She was also denied the opportunity to
continue her participation in the Family Medical Leave Act (FMLA).
On January 11, 1999, an Administrative Judge (AJ) issued a decision
dismissing complainant's complaint for untimely EEO Counselor contact.
On April 20, 1999, the agency issued a decision adopting the AJ's
decision, finding that complainant's February 21, 1997 EEO Counselor
contact was untimely.
Complainant does not argue that the agency misdefined the issues in her
complaint. Therefore, we find that claims 1 and 3 occurred within 45
days of complainant's contact with an EEO Counselor and are thus timely.
Regarding claims 2 and 4, complainant's contact was beyond the 45-day
limitation period. Complainant has not, on appeal, cited any specific
incidents in claims 2 or 4 that occurred within the 45-day limitation
period. Complainant does not present adequate justification to warrant
extension of the applicable time limit to initiate EEO Counselor contact.
The agency's decision dismissing claims 2 and 4 is AFFIRMED. The agency's
decision dismissing claims 1 and 3 is REVERSED and we REMAND claims
1 and 3 for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC field
office to schedule a hearing regarding claims 1 and 3. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 15 calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with the regulations set forth at
29 C.F.R. � 1614.109 and the agency shall issue a decision in accordance
with the regulations set forth at 29 C.F.R. � 1614.110.
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 (T0900)
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 (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 7, 2002
__________________
Date