0120122765
12-13-2012
Michele G. Bonhomme, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
Michele G. Bonhomme,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 0120122765
Agency No. HHS-FDA-CDRH-027-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 16, 2012, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Epidemiologist at the Agency's Division of Epidemiology located in Silver Spring, Maryland.
The record indicated that Complainant contacted the EEO Counselor in December 6, 2011. At that time, Complainant indicated that she had been harassed based on her disability regarding her time and attendance and was given a notice of disciplinary action. The record indicated that Complainant and the EEO Counselor exchanged emails regarding issues that had arisen following her initial contact. In addition, Complainant notified the EEO Counselor that she had obtained legal representation and provided the contact information for the Attorney.
Rather than pursuing the informal counseling process, Complainant requested mediation. The Alternative Dispute Resolution session occurred in March 2012; however no resolution was reached. As such, the Agency's EEO Office issued Complainant a Notice of Right to File a Formal Complaint (Notice) on March 20, 2013. On March 23, 2012, Complainant informed the EEO Counselor that issues identified were not consistent with the information she had provided through the informal process. Further, on March 30, 2012, Complainant sent the Director of the Agency's Office of Equal Employment Opportunity an email informing her that the Agency failed to provide a copy of the Notice to the Attorney. Complainant received no responses from the Agency officials.
On April 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for requesting reasonable accommodations under Section 501 of the Rehabilitation Act of 1973 when, her supervisor (Supervisor) subjected Complainant to a hostile work environment. Complainant also noted that she was retaliated for requesting reasonable accommodations for her disabilities. She noted, in support of her claim of harassment, that the Supervisor:
1. Issued Complainant a rating of "minimally successful;"
2. Harassed Complainant regarding her time and attendance and issued a notice of disciplinary action; and
3. Discriminated against Complainant regarding her duties, reasonable accommodation and reassignment of work.
The Agency acknowledged the complaint and identified her complaint as a claim of discrimination solely based on her disability and listed events (1) - (3) as noted above. The Agency dismissed the complaint as a whole for failure to file a formal complaint in a timely manner pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency noted that Complainant received the Notice on March 20, 2012, but filed the formal complaint on April 9, 2012, well beyond the 15 days. In addition, the Agency noted that events (1) and (3) were not raised with the EEO Counselor. As such, those claims were dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
This appeal followed.
ANALYSIS AND FINDINGS
Untimely Formal Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
On appeal, Complainant provided copies of emails she sent to the Agency's EEO Officials indicating that she had obtained legal representation in her EEO matter and that all information should also be sent to the Attorney. Despite this information, the Agency Officials failed to provide a copy of the Notice to the Attorney. The Agency failed to respond to Complainant's evidence or arguments provided on appeal.
EEOC Regulation 29 C.F.R. �1614.605(d) provides that "when the complainant designates an attorney as representative, service of documents and decisions on complainant shall be made on the attorney and not on the complainant, and time frames for receipt of materials by the complainant shall be computed from time of receipt by the attorney." The Agency never provided service of the Notice on the Attorney. Therefore, we find that the Agency dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) is inappropriate.
Failure to Raise Events (1) and (3)
The Agency also dismissed events (1) and (3) for failure to raise these events with the EEO Counselor. The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
On appeal, Complainant provided copies of emails she sent to the EEO Counselor indicating that she had received the performance appraisal raised in event (1) and issues involving her duties as raise in event (3). Furthermore, a review of the EEO Counselor's report clearly stated that Complainant had alleged that she was harassed by the Supervisor. Events (1) and (3) were raised by Complainant in support of her claim of harassment. As such, we find that these events are related to the original claim raised with the EEO Counselor. Therefore, the Agency's dismissal of (1) and (3) pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to raise the matter with an EEO Counselor.
Identification of the Claim
Finally, the Commission would like to clarify the complaint raised in Complainant's formal complaint. The Agency, in its final decision, stated that Complainant alleged discrimination on the basis of disability and listed three claims. We find that the Agency failed to correctly identify the actual claim raise in Complainant's formal complaint. As stated above, Complainant alleged discrimination on the bases of disability and reprisal when she was subjected to harassment by the Supervisor. The narrative provided by Complainant was given in support of her claim of harassment and should not be treated as separate claims of discrimination. As such, we remand the complaint in accordance with the ORDER below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (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 (R0610)
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 (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 13, 2012
__________________
Date
2
0120122765
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122765