Ellen L. McHorse, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01a01358 (E.E.O.C. Dec. 21, 2000)

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.