01a05030
11-20-2002
Yvonne Posey, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Yvonne Posey v. Department of Health and Human Services
01A05030
11-20-02
.
Yvonne Posey,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A05030
Agency No. FDA 124-95
Hearing No. 310-A0-5002X
DECISION
Yvonne Posey (hereinafter referred to as complainant) filed a timely
appeal from the June 30, 2000, final decision of the Department of Health
and Human Services (hereinafter referred to as the agency) concerning a
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
Complainant claimed discrimination based on race (black), sex, and
reprisal. Following an investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ), who issued a decision without
a hearing dated May 2, 2000, and it was implemented by the agency.<1>
In her complaint, complainant claimed discrimination when (a) the agency
terminated a co-worker (E1) in order to label her a �trouble maker;� (b)
she was placed on AWOL (later changed to LWOP); and (c) her evaluation
was based on the perception of others. The agency stated that E1,
in fact, voluntarily resigned from the agency; that complainant was
placed initially on AWOL, because she did not follow proper procedures
to request leave; and that the subject appraisal was based on input from
staff that had supervised complainant during the year.
On appeal, complainant complains that she has been confused about her
rights; however, our review of the record shows that she, or her lawyer,
was duly and timely notified by the agency and the AJ of her rights
and responsibilities. We note that it was complainant's obligation to
keep the agency and the Commission informed of any change in her address.
29 C.F.R. � 1614.105(b)(1). After a thorough examination of the record,
including statements and arguments not addressed herein, we find that
the Administrative Judge's issuance of a decision without a hearing was
appropriate, and the preponderance of the evidence of record does not
establish that discrimination occurred.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
_____11-20-02_____________
Date
1Complainant sought to consolidate other pending complaints before the
AJ; however, the requested information was submitted untimely and after
issuance of the AJ's decision, even though counsel had indicated that it
had been sent in late April. In addition, we note that the complaints
referenced by complainant for consolidation appear to concern mixed-case
complaints, not properly before an AJ.