Tammy Wilson, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity CommissionDec 16, 2011
0120102457 (E.E.O.C. Dec. 16, 2011)

0120102457

12-16-2011

Tammy Wilson, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.




Tammy Wilson,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services

(Indian Health Service),

Agency.

Appeal No. 0120102457

Agency No. HHS-IHS-0455-2009

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated April 15, 2010, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as

a Pharmacy Technician at the Agency’s Claremore Hospital in Claremore,

Oklahoma.

Complainant contacted the EEO Counselor on September 3, 2009. When the

matter could not be resolved informally, Complainant was issued a Notice

of Right to File a Formal Complaint. On November 13, 2009, Complainant

filed a formal complaint alleging that the Agency subjected her to

discrimination on the bases of race (Native American), sex (female),

religion (Protestant), age (49), and reprisal for prior protected EEO

activity under Title VII of the Civil Rights Act of 1964 when:

1. on January 27, 2009, Complainant was not given an excellent performance

rating;

2. in March 2009, Complainant was denied timekeeping training; and

3. effective September 7, 2009, Complainant’s schedule was changed

and, as a result of the change, Complainant could not attend religious

services on Wednesday nights. As such, Complainant asserted that she

was denied a religious accommodation.

The Agency initially accepted claim (3) for investigation. In its

decision dated January 7, 2010, the Agency dismissed claims (1) and

(2) pursuant to 29 C.F.R. §1614.107(a)(2) for failing to raise these

matters with the EEO Counselor in a timely manner. The Agency noted that

the events alleged occurred in January 2009 and March 2009, however,

Complainant did not contact the EEO Counselor until September 2009,

well beyond the 45-day time limit.

Subsequently, on April 15, 2010, the Agency issued a decision also

dismissing claim (3). The Agency noted that in claim (3), Complainant

alleged merely the speculation that, in the future, she would be denied

the right to attend church services. Further, the Agency determined that

in February 2010, management offered Complainant an accommodation by

allowing her to leave work in time to attend Wednesday night services.

However, according to the Agency, Complainant was not satisfied because

she wanted to leave earlier to serve as the music leader. The Agency

determined that it was not obligated to provide religious accommodation

for Complainant to attend choir practice. Based on the record, the

Agency found that Complainant failed to assert a harm. As such, the

Agency found that the matter should be dismissed pursuant to 29 C.F.R. §

1614.107(a)(1) for failure to state a claim.

This appeal followed. Complainant argues on appeal that music is a

part of her manner of worship. She states she believes that the spirit

of God is released through music and ministers through the hearts of

people. Complainant also indicated that when she had her new schedule come

into effect, she was only able to attend services every other Wednesday

night. Therefore, she had to take leave and exchange shifts in order to

attend the services. As such, Complainant argued that she was harmed when

she was denied religious accommodation to attend the church. Therefore,

Complainant claims that the Agency’s dismissal was not appropriate.

ANALYSIS AND FINDINGS

Dismissal of Claims (1) and (2)

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in §1614.105, §1614.106 and

§1614.204(c), unless the agency extends the time limits in accordance

with §1614.604(c).

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the complainant can establish that

complainant was not aware of the time limit, that complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence complainant

was prevented by circumstances beyond her control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

As to claims (1) and (2), Complainant contacted the EEO Counselor well

beyond the 45-day time limit. Complainant failed to provide any reason to

toll the time limit. As such, we find that the Agency properly dismissed

claims (1) and (2).

Dismissal of Claim (3)

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. §§

1614.103, .106(a). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC

Request No. 05931049 (Apr. 21, 1994).

In this matter, Agency premised its dismissal on its determination that

it was not obligated to provide Complainant with certain accommodations,

and that she rejected the accommodation offered. As such, the Agency

held that Complainant had not shown that she was harmed. However,

Complainant has argued on appeal that she was in fact denied religious

accommodation when she was not able to participate in worship.

After a review of the Agency’s final decision, the Commission finds

that the Agency has addressed the merits of Complainant’s complaint

without a proper investigation as required by the regulations.

We find that the Agency’s articulated reason for the action in

dispute, i.e., that Complainant was accommodated, goes to the merits of

Complainant’s complaint, and is irrelevant to the procedural issue of

whether she has stated a justiciable claim under Title VII. See Osborne

v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19, 1996);

Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993);

Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15,

1991). Upon review, we find that the Agency improperly dismissed claim

(3) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the

Agency’s dismissal of claims (1) and (2). However, we REVERSE the

Agency’s dismissal of claim (3), and REMAND claim (3) for further

processing in accordance with the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claim (religious

accommodation) in accordance with 29 C.F.R. § 1614.108 et seq.

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 (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 (T0610)

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 (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

December 16, 2011

__________________

Date

2

0120102457

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120102457