01996977
12-27-2000
Jeanne Nevzoroff, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Jeanne Nevzoroff v. Department of Health and Human Services
01996977, 01996978
December 27, 2000
.
Jeanne Nevzoroff,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal Nos. 01996977
01996978
Agency Nos. IHS-844-94
IHS-328-95
IHS-032-96
IHS-038-98
Hearing Nos. 380-95-8160X
380-97-8010X
380-97-8011X
380-99-8165X
DECISION
INTRODUCTION
In one final decision dated August 16, 1999, the agency dismissed four
separate complaints from complainant. In these complaints, complainant
alleged discrimination on the bases of race (Native-American), national
origin (Menominee tribe), sex (female), and in reprisal for prior EEO
activity when:
IHS-844-94
On May 3, 1994, complainant was advised to write a memorandum to an
employee she supervises concerning the employee's union activities,
then later was told to put the matter on hold;
On May 10, 1994, management gave instructions to complainant's
subordinates, bypassing complainant; and
On August 9, 1994, complainant's supervisor requested a leave slip from
complainant then tore it up.
IHS-328-95
(4) On July 14, 1995, complainant's office was disbanded and she was
relieved of supervisory duties.
IHS-032-96
Complainant was not promoted to a GS-962-11 Contract Representative
position.
IHS-038-98
Complainant's duties as a GS-10 Contract Representative increased
instead of decreasing when management hired three additional Contract
Representatives.
The agency dismissed all of the claims for failure to state a claim,
and for being moot. Specifically, the agency found that complainant
alleged no tangible employment action. Concerning claim (5), the agency
found that complainant already achieved the full performance level for
her position and therefore was not entitled to a promotion. Further,
the agency noted that complainant did not apply for a promotion to
GS-11 in a different position. According to the agency, other employees
received promotions as a result of reclassification of their positions,
not career ladder or competitive promotions.
In finding the claims moot, the agency notes that complainant voluntarily
transferred to a position with a different agency on May 23, 1998.
Since complainant's transfer, the agency found that her claims could
not continue to occur because they focused on complainant's daily
interactions in the work place. Therefore, the agency found that the
claims were moot.
Complainant timely appealed the dismissals to this Commission (EEOC Appeal
No. 01996977 and 01996978). Pursuant to its discretion, the Commission
consolidates both appeals in this decision. See 29 C.F.R. � 1614.606.
BACKGROUND
In counseling for IHS-844-94, complainant asserted that her problems began
when she sought clarification of her supervisory roles. She contends
that personnel and management questioned her authority, even after
her position description was amended to include supervisory duties.
The agency accepted the complaint for investigation on December 14, 1994,
and complainant requested a hearing with an EEOC Administrative Judge
(AJ) on August 22, 1995 (Hearing Number 380-95-8160X).
Meanwhile, the agency introduced a pilot program to decentralize the
duties performed by complainant and her office. To implement the program,
the agency relieved complainant of her supervisory duties and disbanded
her office. Complainant subsequently filed IHS-328-95. She contended
that Alaskan Natives received preference over Native-Americans from
other parts of the country. In a letter dated August 10, 1995,
complainant requested that the agency restore her supervisory duties,
and allow her to have input on the pilot program. In a separate letter
to the director of the Indian Health Service (IHS), complainant stated,
�I want you to be responsible for all my pain and suffering endured at
the hands of ANMC's management.� Complainant also wrote a letter dated
September 6, 1995, concerning the realignment from the pilot program.
In this letter, complainant explained �my health is suffering, my home
life is suffering . . . the stress is proving unbearable for us all.�
After learning that a former subordinate employee had been promoted
from a GS-9 to GS-11 Contract Representative, complainant again sought
counseling in October 1995.<1> Subsequently, complainant filed a formal
complaint, Agency Number IHS-032-96. In this complaint, complainant
explained her belief that Native-Americans from Alaska received preference
over Native-Americans from other parts of the country. Although the
agency cited a requirement that supervisors be two grade levels above
the employees they supervise, complainant noted that both she and the
promoted employee supervised GS-9 workers. In a letter dated April 18,
1996, complainant's representative requested a GS-11 position, back pay,
and �to be made whole, etc.� Both IHS-328-95 and IHS-032-96 were accepted
for investigation; on September 27, 1996, complainant requested hearings
for the complaints (Hearing Numbers 380-97-8010X and 380-97-8011X,
respectively).
Finally, complainant filed her fourth formal complaint on January 5,
1998, concerning her increased work load (Agency Number IHS-038-98).
Initially, the agency dismissed the complaint for failure to cooperate,
and failure to raise the issues with an EEO Counselor. Complainant
appealed to this Commission (EEOC Appeal No. 01983892). While the
appeal was pending, the agency rescinded its dismissal and accepted the
complaint.<2> After the investigation, complainant requested a hearing
(Hearing Number 380-99-8165X).
By letter dated March 26, 1999, the agency requested that the AJ remand
the first three complaints (IHS-844-94, IHS-328-95, and IHS-032-96)
for procedural dismissal. The agency noted that complainant accepted a
voluntary transfer to another agency, and that outside groups assumed
responsibility for many IHS functions in Alaska. The record includes
complainant's Form SF-50, concerning her transfer to the Social Security
Administration effective May 23, 1998.
In its dismissal, the agency disposed of four complaints, although the
AJ only remanded the first three. By letter dated May 16, 2000, the AJ
returned IHS-035-98 to the agency when it discovered that the agency had
dismissed the claim. The AJ cited �clerical error� as the reason for his
failure to return the complaint to the agency. Complainant appealed the
first three complaints, IHS-844-94, IHS-328-95, and IHS-032-96, in EEOC
Appeal Number 01996977. She filed a separate appeal for IHS-035-99,
in 01996978.
ANALYSIS AND FINDINGS
The agency may dismiss complaints which have been rendered moot. 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).
Where complainant requests compensatory damages and the agency
fails to address the issue, dismissal on the grounds of mootness is
not appropriate. See Hofman v. Department of the Navy, EEOC Request
No. 05970962 (Oct. 28, 1999) (noting that �the issue cannot be moot
because the second prong of the mootness test . . . has not been
satisfied� when compensatory damages are not addressed); Henderson
v. United States Postal Service, EEOC Request No. 05980316 (July 9, 1999).
In such cases, the agency should request that complainant provide some
objective proof of the alleged damages incurred, as well as objective
evidence linking those damages to the adverse actions at issue. See Allen
v. United States Postal Service, EEOC Request No. 05970672 (June 12,
1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (Dec. 3,
1993).
In the present complaints, complainant clearly requested compensatory
damages. Complainant wrote several letters concerning her strained
home life, stress at work, and �pain and suffering� as a result of
the disputed actions. The agency failed to address these requests
for compensatory damages, and therefore, should not have dismissed the
complaints for as moot.
EEOC Regulations also 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 a 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 (Apr. 21, 1994). In claims of harassment, the agency must
consider all of the claims together in a light most favorable to the
complainant to determine whether they state a claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). If the
claims are sufficiently severe or pervasive to alter a term, condition,
or privilege of complainant's employment, then they state a claim
of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993).
Several of the claims raised by complainant state a claim standing alone.
Namely, claims (4) and (6), involving changes to complainant's work duties
and assignments state a claim. The remaining claims, when viewed together
along with claims (4) and (6), involve an actionable claim of harassment.
Complainant characterized the agency's actions as a concerted effort to
force her to resign or transfer. When viewed together, these matters
are sufficiently severe and pervasive to state a claim.
CONCLUSION
Accordingly, the agency's dismissals are REVERSED, and the claims are
REMANDED for further investigation.
ORDER (E0900)
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 (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
(R0900)
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 (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 27, 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
______________________________
1The Commission notes that it recently certified a class complaint of
Native-American women in IHS denied promotions to GS-7 through GS-15
professional and technical positions from April 1996 to the present.
See Crazythunder v. Department of Health and Human Services, EEOC Appeal
No. 01986510 (Dec. 19, 2000). Complainant's claims do not fall within the
class complaint time frame. Therefore, the Commission has not subsumed
IHS-032-96 into the class claims.
2As a result, the appeal was administratively closed.