01a01358
12-21-2000
Ellen L. McHorse, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Ellen L. McHorse v. Department of Health and Human Services
01A01358
December 21, 2000
.
Ellen L. McHorse,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A01358
Agency No. IHS-766-93
DECISION
INTRODUCTION
On October 14, 1999, the agency dismissed complainant's claims of
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. Complainant timely appealed the dismissal to this
Commission.
BACKGROUND
Complaint filed her formal complaint on June 4, 1993, alleging
discrimination on the bases of race (Native American), national
origin (one-fourth each of: Otoe, Southern Arapaho, Oneida, and
Mexican-American), sex (female), and age (46) when:
On December 20, 1992, complainant was denied a promotion to GS-12
following a March 1992 desk audit;
On January 23, 1993, complainant was told that she would have to move
her department;
In January 1993, the Service Unit Director shouted at complainant and
made gestures with his fists threatening complainant;
On January 28, 1993, complainant received a �marginally successful�
rating on her Employee Performance Management Systems (EPMS) evaluation
for the period of January through December 1992 that included negative
comments by the Service Unit Director;
On February 2, 1993, the Hospital Administrator made a derogatory
comment by calling complainant a �powerful woman;� and
In February 1993, complainant was sexually harassed by the Service Unit
Director.
On December 30, 1993, the agency dismissed the claims for failure to
cooperate; complainant appealed to this Commission. The Commission
reversed the agency's decision, and remanded the claims for further
investigation. See McHorse v. Department of Health and Human Services,
EEOC Appeal No. 01941984 (Aug. 10, 1994). Specifically, the Commission
found that complainant specifically enumerated her claims in counseling,
and that the agency had sufficient information to adjudicate the
complaint. See id.
On remand, the agency accepted the claims for investigation. At the
conclusion of the investigation, complainant requested a hearing with
an EEOC Administration Judge (AJ) on December 22, 1995. On March 13,
1997, the AJ remanded the complaint back to the agency and canceled the
hearing (Hearing No. 350-97-8017X). In his remand, the AJ noted that
claim (1) �appears to be a mixed issue appealable to the [Merit Systems
Protection Board (MSPB)].� The AJ requested that the agency issue a new
decision dismissing claims that fail to state a claim or are moot, issue
a decision for any mixed case in compliance with 29 C.F.R. � 1614.302,
and allow complainant a hearing on the remaining issues.
In its October 14, 1999 decision, the agency dismissed claims (1),
(2), (3), (5), and (6) for failure to state a claim. The agency gave
complainant appeal rights to the MSPB for claim (1), and appeal rights
to the Commission for the remaining claims. The agency dismissed claim
(4) for mootness, with appeal rights to this Commission.
In its dismissal of claims (2), (3), (5), and (6), the agency concluded
that the incidents were not severe or pervasive enough to state a
claim of harassment. With regard to claim (4), the agency found that
pursuant to a grievance, complainant's appraisal had been changed to
an �excellent� rating. Further, the agency noted that complainant no
longer worked at the same facility, and that the responsible officials
took positions outside of the Indian Health Service.<1> The agency
denied complainant's request for compensatory damages, finding no
nexus between the injuries alleged and the harm involved in claim (4).
Since the appraisal rating was increased, complainant had no further
contact with the responsible officials, and complainant's compensatory
damages were denied, the agency determined that claim (4) was moot.
The Report of Investigation includes an affidavit from complainant's
rating official. The official stated that complainant's �marginally
successful� performance appraisal was rescinded and replaced with an
excellent or outstanding appraisal. The official also noted that
complainant received a performance award based on her new rating.
The record also contains an agency request that complainant provide
objective proof of the damages she suffered. This request outlines
evidence necessary to support a claim of compensatory damages as specified
in Commission decisions.
ANALYSIS AND FINDINGS
The Commission finds that claim (1) is not properly before it on appeal.
Complainant received appeal rights to the MSPB, not the EEOC, for
this claim. Therefore, the appeal of claim (1) must be dismissed.<2>
The agency also dismissed claims (2), (3), (5), and (6) for failure to
state a claim. EEOC Regulations require the dismissal of complaints that
fail to state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race, sex,
religion, national origin, age, disability, or prior protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). In claims of hostile work environment harassment, the
incidents must be sufficiently severe or pervasive to alter the conditions
of the complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). To determine whether an actionable claim of
harassment exists, the agency must view all of the allegedly harassing
incidents together in a light most favorable to complainant. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
When considered together, claims (2), (3), (5), and (6) state a claim
of harassment. Complainant alleged harm from a series of actions at the
hands or in the presence of her supervisor, the Service Unit Director.
Therefore, the agency's dismissal of these claims was improper.
Finally, the agency dismissed claim (4) for being moot. EEOC
Regulations provide for the dismissal of moot complaints. See 29
C.F.R. � 1614.107(a)(5). To determine whether the issues raised in
complainant's complaint are moot, the fact finder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In the present case, the agency provided some interim relief by
replacing complainant's �marginally successful� rating with an �excellent�
performance appraisal. It appears that complainant received a performance
award as a result. The record also reveals that complainant no longer
works with any individual involved in or otherwise responsible for the
offending appraisal.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
she has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. for recons. den., EEOC
Request No. 05930306 (February 1, 1993). Should complainant prevail on
this claim, the possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 9, 1993).
Complainant submitted a seventeen-page document, including attachments,
concerning damages. Complainant calculated the extra salary she would
have received if she obtained a GS-12 promotion. She also detailed
the expenses related to her move to a different office, noting that she
applied for jobs elsewhere to mitigate her damages. Complainant included
a letter from her doctor, indicating that complainant began treatment
in early 1996, for depression, and has since been diagnosed with �major
depression with prominent anxiety, in adjustment to work-related stress.�
The letter indicates that complainant has suffered from the symptoms
of clinical depression since 1993, and that �in my opinion, the primary
cause of these symptoms has been work-related stress.�
The Commission agrees with the agency that the majority of complainant's
documentation concerning compensatory damages shares no nexus with
claim (4). The Commission finds, however, that the physician's report
is sufficient to constitute objective evidence necessary to show that
complainant may be entitled to compensatory damages were she to prevail
on her complaint. Further, this claim is part of her overriding claim
of harassment. Therefore, we cannot find that the effects of the
alleged discrimination have been completely eradicated. The complaint
is not moot. The Commission makes no determination in this decision
as to whether complainant would actually be entitled to compensatory
damages were she to prevail on the merits of her harassment complaint.
CONCLUSION
Accordingly, the appeal of claim (1) is DISMISSED. The agency's dismissal
of claims (2) - (6), however, is REVERSED, and the claims are REMANDED
for a hearing as ordered below.
ORDER
The agency is ordered to perform the following:
Within fifteen days of the date this decision becomes final, contact
the relevant EEOC District Office in writing to schedule a hearing on
the merits of claims (2) - (6).
Send a copy of the letter referenced in provision 1 of this Order to
complainant and to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
December 21, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1According to the agency, the Service Unit Director took a position
outside of the IHS, and the Hospital Administrator was transferred to
Headquarters West Operations.
2The Commission notes that it recently certified a class complaint of
Native-American women denied promotions to GS-7 through GS-15 professional
and technical positions in the Indian Health Service from April 1996 to
the present. See Crazythunder v. Department of Health and Human Services,
EEOC Appeal No. 01986510 (Dec. 19, 2000). Complainant's non-promotion
claim does not fall within the time frame for the certified class,
and therefore, cannot be subsumed into the class complaint.