0120160617
03-09-2016
Kasie L.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kasie L.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120160617
Agency No. HHSIHS02002015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 5, 2015, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Physician at the Acoma-Canoncito-Laguna (ACL) Service Unit, part of the Albuquerque Area Indian Health Service in Albuquerque, New Mexico.
On April 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Tunisia, Africa), sex (Female), and color (White) when:
1. From February 2014 through May 2014, she was subjected to harassment when clinic staff and the Clinic Director/Nurse Practitioner, RMO-1 (White, American-born, Female), challenged Complainant's orders and patient care decisions, and RMO-1 terminated Complainant's contract; and
2. On February 20, 2015, RMO-1 and the Acting CEO, RMO-2 (Indian, Navajo, Male), informed her that her selection for the full time permanent Internal Medicine position had been rescinded.
In February 2014, Complainant started a contract assignment at the ACL Indian Hospital. Her immediate supervisor was another doctor (Male, other bases unknown), and her second line supervisor was the Hospital CEO (Female, other bases unknown). Throughout her assignment, Complainant alleges that RMO-1, RMO-1's staff, and RMO-2, a pharmacist at the time, subjected her to harassment by questioning her medical decisions and holding her to a different standard of conduct than they would a male doctor and/or a doctor of Indian (Native American) descent. RMO-1 terminated Complainant's contract several months early in May 2014. However, the CEO rehired Complainant for a contract term of October 19, 2014 through March 31, 2015, which was later extended to May 2, 2015.
In November 2014, Complainant responded to a vacancy announcement posted by the Agency for the position of Medical Officer (Internal Medicine), GS-0602-14. The position was full-time, permanent, and at the same hospital where Complainant was already working under contract. She alleges that her supervisor first informed her she had been was selected for the position, and on November 24, 2014 she received an offer from the CEO. Complainant accepted and "proceeded with finger printing and such." She was scheduled to start on May 4, 2015, after her contract expired.
In or around January 2015 the CEO who hired Complainant left the Agency and RMO-2 was named Acting CEO. Around that time, Complainant witnessed a staff nurse have difficulties handling a patient and she reported the nurse to management. About a week later, the same staff nurse mentioned planning monthly parties in their hospital unit and Complainant told her she needs to study nursing and improve on her nursing skills before throwing parties. Complainant alleges that this incident led to RMO-1, who was the staff nurse's supervisor, reporting Complainant to RMO-2. On February 20, 2015, RMO-2, as Acting CEO, called Complainant into his office, where RMO-1 was also present. RMO-2 informed Complainant that the Agency was rescinding its offer for the Internal Medicine position. Complainant alleges that as justification, both RMOs accused her of conduct issues and staff complaints of which she was unaware prior to that time.
Complainant's contract was extended through July 26, 2015, and as of June 3, 2015, the Internal Medicine vacancy remained unfilled.
The Agency dismissed Claim 1 for untimely contact with an EEO Counselor pursuant to 29 C.F.R. � 1614.105(a)(1) and Claim 2 for failure to state a claim under 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
In the instant case, Complainant was aware of the harassment and contract termination in May 2014, but did not seek counseling until February 21, 2015, which is well beyond the 45-day limitation period. On appeal, Complainant does not provide any reason for the delay in seeking EEO counseling.
Claim 1 was properly dismissed as untimely.
Claim 2
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency found that Complainant failed to establish that she was harmed as a result of the Agency's action, and therefore could not be an "aggrieved employee" per the regulation. The Agency also emphasized that no other applicant was selected for the rescinded position, citing Jenkins v. Army, EEOC Request No. 05930365 (October 22, 1993), and Young v. Dep't of Health & Human Serv., Appeal No. 0120073223 (October 4, 2007), in which we previously held that, in most instances, where no selection is made for a position, an applicant claiming discriminatory nonselection fails to state a claim.
We find the Agency erred by treating Claim 2 as a nonselection complaint. The record and the Agency's final decision both reveal that the previous CEO selected and offered Complainant the permanent full-time Internal Medicine position, which she accepted. Rescission of such an offer constitutes a personal injury or harm to a term, condition or privilege of employment. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141044 (Dec. 18, 2014)
As Complainant is an "aggrieved employee" under EEOC regulations, the Agency's dismissal of Claim 2 was improper.
CONCLUSION
Accordingly, the Agency's dismissal of Claim 1 is AFFIRMED; and the Agency's dismissal of Claim 2 is REVERSED and REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (1) the Agency's letter of acknowledgment referencing this Decision, the claims to investigate (as stated in the Decision) and Complainant's rights; (2) the transmittal/cover letter with notice of election rights that accompanies Complainant's file; and (3) either the Final Agency Decision ("FAD") in its entirety with appeal rights or Complainant's signed hearing request and the transmittal letter accompanying Complainant's file for a hearing, must be included in the Compliance Report 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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