01A21228
09-15-2003
Walter C. Sloane, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
Walter C. Sloane v. Department of Health and Human Services
01A21228
September 15. 2003
.
Walter C. Sloane,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 01A21228
Agency Nos. FDA-CC-001-96; FDA-CC-001-97; FDA-CC-058-97
Hearing Nos. 120-98-9453X; 120-99-6081X; 120-99-6084X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Commissioned Officer in the
Public Health Service at the agency's Food and Drug Administration
located in Rockville, Maryland, filed a timely formal EEO complaint,
alleging that the agency discriminated against him on the bases of race
(African-American), sex (male), age (57), and in reprisal for prior EEO
activity arising under Title VII and ADEA. At the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a full hearing on the merits,
the AJ issued a decision dismissing the complaints, holding that the
EEOC did not have jurisdiction over members of the Commissioned Corps
of the Public Health Service. When the agency failed to issue a final
order, the AJ's decision became the agency's final action pursuant to
29 C.F.R. � 1614.109(i).
The agency did not respond to complainant's appeal. Complainant alleges
that the AJ erred in relying on Raymond v. Department of Health &
Human Services, EEOC Appeal No. 01987012 (October 13, 2000) for the
authority to dismiss his claim for lack of jurisdiction. Specifically,
complainant alleges that the sections of Public Health Service Act
limiting the EEO rights of members of the Commissioned Corps do not
eliminate EEOC jurisdiction in all circumstances and apply only when a
member of the Commissioned Corps is in active service as defined by 42
U.S.C. � 214(a)(1) - (3). Complainant also alleges that the AJ erred
in applying Raymond and its progeny<1> to the instant case because he
alleges that the EEOC has jurisdiction over EEO claims brought by members
of the Commissioned Corps who filed EEO claims prior to the 1998 amendment
(� 213(f)) to 42 U.S.C. � 213 of the Public Health Service Act.
As a preliminary matter, we note that an AJ's conclusions of law
are subject to a de novo standard of review, regardless of whether
a hearing was held. 29 C.F.R. � 1614.405(a). The Commission finds
the AJ properly dismissed complainant's case for lack of jurisdiction.
As stated in the Commission's decision in Raymond v. Department of Health
and Human Services, supra, the Commission's jurisdiction over complaints
by federal employees does not extend to uniformed military personnel.
See 29 C.F.R. � 1614.103(d)(1). Furthermore, we note that in the preamble
to the revised regulations at 29 C.F.R. Part 1614, governing the EEOC's
federal sector complaint process, the Commission specifically declined to
add the Public Health Service Commissioned Corps to the list of entities
covered by the EEOC regulations. See Matters of General Applicability,
64 Fed. Reg. 37,644, 37,655 (1999). We find that complainant has failed
to present any evidence or arguments to alter the Commission's previous
position regarding jurisdiction over the Commissioned Corps. We decline
to address complainant's second argument concerning the applicability
of 42 U.S.C. � 213(f). Therefore, we affirm the agency's final order
adopting the AJ's dismissal of complainant's claims.
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
September 15, 2003
__________________
Date
__________________
Date
1These cases include Chandler v. Department of Health &
Human Services, EEOC Appeal No. 01A02509 (January 3, 2001);
Guerard v. Department of Health & Human Services, EEOC Appeal
No. 01986811 (July 17, 2001); Veiga v. Department of Health &
Human Services, EEOC Appeal No. 01A01958 (February 26, 2003).