01993079
12-27-2000
Rowena Komahcheet, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Rowena Komahcheet v. Department of Health and Human Services
01993079
December 27, 2000
.
Rowena Komahcheet,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01993079
Agency No. IHS-018-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 17, 1999, dismissing her remaining claims 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), national
origin (Comanche), age (68), and in reprisal for prior EEO activity when:
On August 21, 1997, complainant was confronted by a coworker about a
statement she made about �things being moved around in the GI lab;�
On November 6, 1997, complainant was asked to go home by the Head Nurse
before finishing her duties, which denied her overtime;
A younger co-worker received preference in upward job mobility;
Preferential treatment was given to a coworker of a different race;
Because complainant is Comanche, she is assumed to be responsible for
actions of the Comanche Nation's governmental actions with respect to
tribal policy-making;
Complainant received unfair job evaluations; and
Complainant was denied promotions/upgrades;
By decision dated July 31, 1998, the agency accepted claims (1)
and (2) for investigation, but dismissed the remaining claims.<2>
Complainant did not appeal the July 31, 1998 dismissal. On November 9,
1998, the agency offered complainant a certified offer of full relief.
Complainant failed to accept the offer, and the agency dismissed the
accepted claims on February 17, 1999. On March 4, 1999, complainant
timely appealed the dismissal.
As noted, on November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Under these revisions, the Commission deleted the
dismissal basis of failure to accept a certified offer of full relief from
the regulations. See 64 Fed. Reg. 37,644, 37,645 (1999). In other words,
agencies may no longer dismiss administrative EEO complaints due to a
complainant's failure to accept a certified offer of full relief. Any
dismissal on the grounds of failure to accept a certified offer of full
relief is now improper under the revised regulations.<3>
CONCLUSION
Accordingly, the agency's decision in the present case must be VACATED,
and the complaint REMANDED for further processing in compliance with
the revised EEOC Regulations.
ORDER
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. However, any claims concerning the failure to
promote or hire complainant occurring since April 12, 1996, must be
subsumed into Crazythunder v. Department of Health and Human Services,
EEOC Appeal No. 01986510. 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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Claims (3), (4), (6), and (7) were dismissed for failure to cooperate,
and claim (5) was dismissed for untimely counselor contact.
3Further, the Commission notes the existence of a class complaint
concerning the failure to promote Native-American women employed in
professional and technical positions between GS-7 and GS-15 at the Indian
Health Service since April 12, 1996. See Crazythunder v. Department
of Health and Human Services, EEOC Appeal No. 01986510 (Dec. 19, 2000).
All claims concerning the failure to promote Native-American women within
this time frame must be subsumed within the class complaint. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at ch. 8, � III (C) (November 9, 1999).