Sara Crazythunder, et al.v.Department of Health and Human Services, 01986510, 01994921, 01995607 December 19, 2000 . Sara Crazythunder, et al., Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency, Appeal Nos. 01986510 01994921 01995607 Agency Nos. IHS-058-97 IHS-063-98 Hearing No. 120-97-4104X

Equal Employment Opportunity CommissionDec 19, 2000
01986510 (E.E.O.C. Dec. 19, 2000)

01986510

12-19-2000

Sara Crazythunder, et al. v. Department of Health and Human Services, 01986510, 01994921, 01995607 December 19, 2000 . Sara Crazythunder, et al., Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency, Appeal Nos. 01986510 01994921 01995607 Agency Nos. IHS-058-97 IHS-063-98 Hearing No. 120-97-4104X


Sara Crazythunder, et al. v. Department of Health and Human Services,

01986510, 01994921, 01995607

December 19, 2000

.

Sara Crazythunder, et al.,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

Agency,

Appeal Nos. 01986510

01994921

01995607

Agency Nos. IHS-058-97

IHS-063-98

Hearing No. 120-97-4104X

DECISION

INTRODUCTION

Complainant filed an appeal with this Commission from the agency's July

10, 1998 decision dismissing complainant's proposed class complaint (for

failing to meet the prerequisites of a class complaint) and dismissing

complainant's individual claims (for untimely EEO counselor contact).<1>

The dismissal of the proposed class complaint is accepted on appeal as

EEOC Appeal No. 01986510.

Complainant also filed two separate individual complaints, Agency

Nos. IHS-058-97 and IHS-063-98. On May 28, 1999, the agency dismissed a

portion of IHS-058-97; in a separate decision also dated May 28, 1999,

it dismissed IHS-063-98 in its entirety (for stating the same claims

raised in IHS-058-97). Complainant appealed these dismissals in EEOC

Appeal Nos. 01994921 and 01995607, respectively.

The Commission may consolidate two or more complaints of discrimination

filed by the same complainant. 29 C.F.R. � 1614.606. Pursuant to this

discretion, the Commission will address 01986510, 01994921, and 01995607

herein.

BACKGROUND

A. 01986510

Complainant, a Native-American woman working as a GS-14 Management Program

Analyst in the Indian Health Service (IHS), sought EEO counseling on June

4, 1996. She alleged claims of discrimination in promotions against

a class of women at the IHS. She also discussed the agency's transfer

of Native-American women who have filed EEO complaints into the Office

of Planning, Education, and Legislation (OPEL). On August 20, 1996,

complainant received a notice of right to file a formal complaint.

She filed her formal class complaint on August 22, 1996, seeking to

represent female, �non-anglo� applicants and employees in the IHS who

suffered non-selection, non-promotion, and other forms of disparate

treatment in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. On December 5, 1996, complainant

amended her complaint to include all technical and professional women

GS-7 and above, IHS-wide, allegedly aggrieved when:

IHS failed to provide women with effective affirmative action by

failing to promote them, provide them with the opportunity to compete

for vacancies that are routinely filled non-competitively through the

reassignment of males, and generally by classifying women lower than

men who are doing the same or similar work; and

The IHS systematically isolated and segregated Native-American women

in the Office of Planning, Education, and Legislation (OPEL) who have

filed EEO complaints or Merit Systems Protection Board (MSPB) appeals

by reassigning them to OPEL.

Upon receiving the formal class complaint, the agency forwarded the

complaint file to an EEOC Administrative Judge (AJ) for a certification

determination. Before rendering his decision, the AJ requested additional

information from the parties, including evidence that complainant suffered

individual harm common and typical of the class.

Complainant, by letter dated February 3, 1997, responded that she was

denied promotions to Health System Administrator (GS-15) on January

4, 1994, and Senior Program Analyst (GS-15) on August 5, 1995. She

argued that �never ending details� were used to fill key positions.

Complainant also noted that she was not selected for the position of

Director, Office of Management Support. Complainant argued that the

official who wrote the position description and application requirements

served as Acting Director of the position, and submitted an application

for the position. In other correspondence, complainant explained that

she was denied travel to attend a technology conference and was denied

an �IMPACT card� to purchase supplies. Further, complainant claimed to

have been denied an Indian Preference Act reassignment.<2> She attached a

letter from the Assistant Surgeon General dated April 12, 1996, denying

her a reassignment to work with the Fox and Sac Tribal Nations.

Through a Freedom of Information Act (FOIA) request, complainant requested

information on all women in the IHS identified by race, promotions,

awards, performance appraisals, pay grade, training, EEO complaints, MSPB

appeals, and adverse actions. The agency informed complainant that her

request would cost approximately $4,000. When complainant refused to pay,

the agency refused to compile the information. To collect information,

complainant's attorney sent a questionnaire to female employees of the

IHS concerning their promotional opportunities. The questionnaire asked

employees if they were satisfied with their promotional opportunities, and

if not, to identify what hindered their advancement. The questionnaire

did not request respondents to disclose their race.

Twenty-five employees responded to the survey, all stating that they

were not satisfied with promotional opportunities.<3> The questionnaire

provided choices for respondents to circle when pinpointing the exact

causes of their dissatisfaction (some respondents chose multiple causes):

ten persons cited Indian Preference laws; thirteen circled the lack

of higher-level vacancies; seventeen indicated �unfairness in filling

vacancies�; nine cited a lack of career ladder positions; fourteen

cited the lack of a Women's Executive Leadership Program; eighteen

circled preselection; five indicated a need for more experience; eight

cited a need for more education; ten claimed a need for more training;

nine cited the practice of detailing positions for more than thirty days;

ten cited favoritism; three circled the agency's practice of �contracting

out�; two cited being hired into temporary positions that last for years

but pay no benefits; and two circled �family responsibilities� as the

cause of their dissatisfaction. Twenty-four of twenty-five responded

�yes� when asked whether advertised vacancies were preselected, and ten

believed they had been denied a promotion due to gender.

The record also included a September 10, 1997 letter from the union,

signed by several stewards. This letter detailed agency practices

of canceling vacancy announcements after a number of qualified

Native-Americans apply, and filling vacancies through preselection

or temporary details. The union harshly criticized what it viewed as

widespread abuse of merit systems hiring principles to the detriment

of Native-American employees. It noted that since the trend began,

over 390 EEO complaints and 280 grievances had been filed concerning

such problems.

The AJ's decision, dated May 18, 1998, certified a class consisting of:

All [Native-American] women employed in professional and technical

positions IHS-wide above the GS-7 level who, since April 12, 1996,

the agency has failed or refused to promote due to disparate treatment,

including the failure to provide them with the opportunity to compete

for vacancies which are routinely filled non-competitively through the

reassignment of males or non-Native-Americans, preselection, generally

classifying women lower than men who are doing the same or similar work

and by subordinating their qualifications by not selecting them when

they are most qualified to fill vacant positions.

The AJ found that complainant, a Native-American who favors use of the

Indian Preference Act, would face a conflict of interest if representing

non-Native-American women. In so finding, the AJ noted that several

women who responded to complainant's questionnaire believed that

the Indian Preference Act inhibited their promotional opportunities.

The AJ also found that claims concerning awards, evaluations/appraisals,

pay, reprisal, and sexual harassment were not raised with the EEO

Counselor, and thus must �be stricken.� With regard to the segregation

of Native-American women in OPEL, the AJ found insufficient typicality

or numerosity -- only five such employees were reassigned to OPEL,

and two of those five had no prior EEO activity.

Concerning the claim he certified, the AJ stressed that seventeen of

the twenty-five questionnaire respondents felt discriminated against

in promotions, and that discovery did not begin until after class

certification was completed. Given the high percentage of responses

indicating discrimination in promotions, and complainant's identification

of at least eighty-nine Native-American women IHS-wide working above

GS-7, the AJ inferred that a high percentage of the Native-American

women must have discriminatory promotion claims. Therefore, the AJ found

sufficient numerosity in the class complaint. The AJ acknowledged

that the race of questionnaire respondents was unknown, but found

it indicative of �numerous women� suffering similar harm to that of

complainant. Further, the AJ noted �at this stage of the proceedings,

the questionnaire responses may be taken to be illustrative and sufficient

to permit discovery on the issue of identifying class members who have

been harmed.�

In its July 10, 1998 decision, the agency refused to certify any class.

It also dismissed complainant's individual claims for untimely counselor

contact. Regarding the class complaint, the agency found that the

class as identified by the AJ failed to meet commonality, typicality,

or numerosity requirements. The agency explained that complainant never

articulated a common policy or practice behind the non-promotions.

Without such information, the agency found that it could not certify

complainant's �across-the-board� class claim. Further, the agency

found the questionnaire responses unreliable because they provided no

information of race and indicated that only ten of twenty-five respondents

believed they were discriminated against because of gender. Concerning

numerosity, the agency refused to infer that eighty-nine Native-Americans

suffered similar harm based on the questionnaire results.

Regarding complainant's individual complaint, the agency acknowledged

that complainant contacted a counselor on June 4, 1996, but found she only

raised the reassignment of a co-worker to OPEL at that time. The agency

observed that complainant did not raise any issues of personal injury

until requested by the AJ. Further, the agency explained that even

if the claims had been raised with the EEO Counselor, the most recent

event (denial of Indian Preference Act reassignment on April 12, 1996)

occurred more than forty-five days prior to counselor contact.

B. 01994921

In IHS-058-97, complainant alleged discrimination on the bases of race

(Native-American), sex (female), age (45), and in reprisal for prior

EEO activity when:

The agency actively prevented complainant from reinstatement as a form

of punishment for prior EEO complaints;

During May 1996, complainant's right to confidentiality was breached;

Management failed to issue complainant copies of her 1996 interim and

final performance appraisal;

Management planned to isolate all EEO troublemakers in one division

and sideline them;

On May 29, 1997, complainant was not selected for the position of

Director, Office of Management Support, under Vacancy No. 97-43;

The frequency/appropriateness of complainant's work assignments were

unreasonable and inconsistent with complainant's grade and function; and

In May 1997, complainant's travel and IMPACT cards were canceled.

In November 1997, the agency dismissed claim (a) for stating the same

claim previously raised with the Merit Systems Protection Board (MSPB),

and dismissed claim (d) as a proposal to take a personnel action.

Complainant appealed, and the Commission vacated the agency's findings.

See Crazythunder v. Department of Health and Human Services, EEOC

Appeal No. 01981690 (Feb. 18, 1999). Specifically, the Commission

found no evidence in the record concerning complainant's MSPB appeal,

and found some indication that the action proposed in claim (d)

had been implemented. On remand, the agency dismissed claim (a) for

alleging the same matter raised with the MSPB, and claims (b), (c),

(d), (f) and (g) for being moot because complainant was selected for

a position at another agency. The agency also dismissed claim (c)

on alternative grounds for failure to state a claim. Claim (e) was

accepted and is pending before the agency. This dismissal was appealed

to this Commission in EEOC Appeal No. 01994921.

In response to the remand from EEOC Appeal No. 01981690, the agency

included a copy of complainant's MSPB appeals in the record. In MSPB

Docket No. DE-0752-95-0494-I-1, complainant raised the agency's failure

to reinstate her as a GS-15, and failure to select her for Vacancy

Announcement 95-34.<4>

C. 01995607

In IHS-063-98, complainant alleged discrimination in retaliation for

prior EEO activity when:

Complainant's reinstatement rights (voluntary downgrade) to previous

grade of GM-15 were violated from September 1993 to present;

The agency denied complainant's tribally requested Indian Preference Act

(IPA) assignment in March 1996, and a verbal request in March 1997;

The agency denied complainant proper consideration to agency appointments

and hiring from September 1993 to date;

Management gave complainant a lack of meaningful, appropriate work

consistent with her level of education and field experience from September

1996 to date;

Complainant was denied reassignment rights to field positions;

Management proposed an evaluation/appraisal at a �satisfactory level�

in 1996;

Management canceled complainant's travel and IMPACT card in May 1997;

Complainant was not selected/promoted in April 1997; and

Management breached complainant's confidentiality in May 1996.

The agency dismissed the entire complaint for stating the same claims

raised in IHS-058-97. The Counselor's Report for IHS-063-98 indicates

that complainant was refused reassignment to the �Managed Care Project�

and the �Health Services Research Agenda.� The report also mentions

the denial of Sac and Fox tribal requests that complainant work with

them pursuant to the Indian Preference Act.

ARGUMENTS ON APPEAL

A. 01986510

Regarding the class complaint, complainant asserts that the reassignment

of Native-American women to OPEL is proof of reassignments to segregate

Native-American women �endemic throughout IHS management structure.�

Complainant argues that the small-scale reassignments to OPEL show �it

likely could occur at other places within IHS . . . .� She contends that

with more information, she could show an across-the-board practice of

segregating �trouble-makers.�

Complainant argues that the agency should be sanctioned for failing

to respond to the AJ's request for information. She notes that the

agency provided no statistical evidence, and in light of the agency's

failings, its criticism of the questionnaire is �unfounded.� Based on

the �limited time for response and the limited ability to disseminate the

questionnaire,� complainant argues that the responses were a �very good

indication that there was a great deal of interest among potential class

members in the IHS.� She asserts that the questionnaire was intended to

provide an �initial sounding� to establish a good faith basis to proceed

with the class complaint, not to encapsulate the experiences of every

Native-American women employed at IHS.

Concerning numerosity, complainant argues that she could provide more

detailed information if the agency honored her FOIA request. According

to complainant, her assertion of eighty-nine potential Native-American

class members was a �fair estimate;� but a newly provided �Work Force

Inventory Profile System� indicates that there are 2,615 Native-American

females working at IHS between GS 7-15. Complainant asserts that if

the questionnaire was posted for a longer period of time, and in a more

scientific manner, then �the potential class could number several hundred

. . . from a widely dispersed geographic area.�

Complainant argues that her complaint is timely under the continuing

violation theory. According to complainant, the AJ properly

�related-back� the Indian Preference denial to her earlier claims.

Complainant also cites the separate individual complaints to support

the timeliness of the class claims. She contends that these individual

claims are a continuation of the non-selection and non-promotion claims

raised in the present class complaint. Complainant also argues that

she had no reasonable suspicion of discrimination until she learned that

her co-worker was reassigned to OPEL.

In response, the agency contends that complainant failed to articulate

any personal harm occurring within forty-five days of counselor contact.

Therefore, the agency argues that her entire complaint should be

dismissed. The agency also asserts that no sanctions are appropriate

because the AJ merely requested that both parties submit �any and

all additional information [they wished] to present concerning the

complaint.�

B. 01994921 and 01995607

Complainant argues that claim (a) from 01994921 is not identical to

her MSPB appeals because the MSPB appeals concerned reinstatement to a

specific vacancy, while the EEO complaint concerns the agency's failure

to reinstate complainant generally as punishment for prior EEO activity.

Complainant contends that since the initial 1996 MSPB appeal, she has

been denied reinstatement to five separate vacancies. Complainant argues

that she had reinstatement rights under the terms of her downgrade,

and that each failure to reinstate merits separate investigation.

Complainant also asserts that her claims are not moot. On appeal, she

requests $500,000 in compensatory damages, and notes that the agency

failed to address her earlier damage requests. Complainant contends that

she sought work at another agency to mitigate damages. Concerning claim

(c) complainant argues that the agency not only delayed her performance

appraisal, but also attempted to lower her evaluation from 400 (excellent)

to 250 (satisfactory). The agency provided no argument concerning either

individual complaint on appeal.

ANALYSIS AND FINDINGS

A. Class Complaint (01986510)

The purpose of class action complaints is to economically address

claims �common to [a] class as a whole . . . turn[ing] on questions

of law applicable in the same manner to each member of the class.�

General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155

(1982) (citations omitted). Under EEOC Regulations, a class complaint

must allege: (i) the class is so numerous that a consolidated complaint

concerning the individual claims of its members is impractical; (ii) there

are questions of fact common to the class; (iii) the class agent's claims

are typical of the claims of the class; and (iv) the agent of the class,

or, if represented, the representative, will fairly and adequately

protect the interests of the class. 29 C.F.R. � 1614.204(a)(2).

A class complaint may be dismissed for failing to meet the above-listed

requirements, or for any grounds provided in 29 C.F.R. � 1614.107(a).

See id.

The agency dismissed the complaint for failure to contact a counselor

within forty-five days of the date complainant suffered any personal harm.

Generally, complainants must contact an EEO Counselor within forty-five

days of an incident's occurrence. See 29 C.F.R. � 1614.105(a)(1).

The agency or Commission may extend this time limit under certain

circumstances. See 29 C.F.R. � 1614.105(a)(2). Complaints that fail

to comply with the time limit must be dismissed. See 29 C.F.R. �

1614.107(a)(2).

Continuing violations normally allow complainants to proceed with

complaints alleging a series of interrelated discriminatory acts, provided

that at least one of the claims occurs within the forty-five day time

limit. See Reid v. Department of Commerce, EEOC Request No. 05970705

(Apr. 22, 1999). However, when the claims involve a discriminatory

system, policy, or practice maintained beyond the forty-five day time

period, complainant's failure to contact a counselor within forty-five

days of a specific incident does not defeat her claim. See Redmon

v. Office of Personnel Management, EEOC Request No. 05991100 (Aug. 25,

2000). Otherwise, complainant would be required to postpone her filing

until additional discriminatory actions occurred. See id.

The Commission finds that complainant alleged a pattern of non-selection

and non-promotion occurring before and after counselor contact. She has

raised a number of complaints in various forums concerning the agency's

failure to promote or select Native-American women, and has challenged

its policies of filling positions with details and preselection.

Given these patterns, the Commission finds the agency's dismissal for

untimely counselor contact improper.

Claims not brought to the attention of an EEO Counselor also must be

dismissed, provided they are not like or related to matters raised with

the counselor. See 29 C.F.R. � 1614.107(a)(2). The AJ found no reason

to include her claims concerning awards, evaluations/appraisals, pay,

reprisal, and sexual harassment with the class complaint. The Commission

agrees; complainant did not raise these claims with an EEO Counselor

prior to filing the class complaint, nor present any information to

suggest that they were related to any class-based claims. Accordingly,

these claims were properly dismissed.

To merit class certification, a class agent must be part of the class

she hopes to represent, and must �possess the same interests and suffer

the same injuries� as unnamed class members. Falcon, 457 U.S. at 156.

In analysis, the �commonality and typicality requirements tend to merge.�

Id. at 157 n. 13. �Factors to consider in determining commonality are

whether the practice at issue affects the whole class or only a few

employees, the degree of local autonomy or centralized administration

involved, and the uniformity of the membership of the class, in terms

of the likelihood that the members' treatment will involve common

questions of fact.� Mastren v. United States Postal Service, EEOC

Request No. 05930253 (Oct. 27, 1993).

In the instant complaint, the Commission agrees that complainant could

not represent non-Native-American women without creating a conflict of

interest. Complainant is Native-American and discusses her frustration

with the agency's failure to implement the Indian Preference Act to her

benefit. Of the twenty-five responses to the questionnaire, ten believed

that the Indian Preference Act hindered their promotional opportunities.

Complainant's representation of such individuals would conflict with her

own interests. Further, complainant's support of the Indian Preference

Act would not share common facts with claims opposing use of the Act.

Therefore, we cannot allow complainant to represent non Native-Americans.

The class as defined by the AJ, however, exhibits sufficient commonality

and typicality. Complainant alleged several non-selections during the

relevant time period, and provided anecdotal evidence of others suffering

similar harm via the questionnaire. Complainant also presented evidence

of widespread preselection and cancellation of vacancies, occurring

throughout the IHS. Given the lack of discovery in the present complaint,

the Commission finds that complainant presented sufficient evidence

to warrant (at least provisional) certification. See Moten v. Federal

Energy Regulatory Commission, EEOC Request No. 05960233 (Apr. 8, 1997)

(noting that cases denying certification in similar circumstances were

based on extensive evidence garnered from weeks of hearings).<5>

Numerosity does not imply an absolute limit, but requires examination

of the specific facts of each case. See General Telephone Co. v. Equal

Employment Opportunity Commission, 446 U.S. 318, 330 (1980). In addition

to the number of class members, relevant factors include geographic

dispersion, ease with which the class may be identified, the nature of the

action, and the size of each claim. See Wood, Sr, et al. v. Department

of Energy, EEOC Request No. 05950985 (Oct. 5, 1998).

The Commission agrees that the claim concerning the reassignment of

Native-American �trouble-makers� into OPEL lacks numerosity. The record

indicates that only three Native-American employees were reassigned to

OPEL after they filed EEO complaints -- certainly not too numerous to

address as consolidated or individual complaints. Complainant presented

no evidence that other employees with prior EEO activity were segregated

into certain units. Therefore, we find that this claim fails to satisfy

numerosity.

The class claim identified by the AJ has sufficient numerosity to proceed.

Complainant initially estimated eight-nine potential class members.

However, the agency's Work Force Inventory Profile System reveals that

over 1,000 Native-American women work in technical and professional

positions between GS-7 and GS-15. Anecdotal evidence suggests widespread

problems of non-promotion and non-selection for women within the agency.

Complainant also presented evidence of over 300 EEO complaints filed

nation-wide concerning the agency's promotion/selection practices,

specifically emphasizing those that affect Native-Americans at IHS.

Given this information, the Commission finds sufficient evidence of

numerosity.

As noted above, the class defined by the AJ meets class certification

requirements. The claims must be remanded to the AJ for discovery,

and the agency must attempt to contact potential class members as

provided in 29 C.F.R. � 1614.204(e) and the order herein. The Commission

notes, however, that our regulations concerning the period after class

claim acceptance not only provide for discovery, but also give the AJ

discretion to redefine a class, subdivide it, or recommend dismissal

if it is discovered that there is no longer a basis to proceed as a

class complaint. 29 C.F.R. � 1614.204(d); Dumbar v. Social Security

Administration, EEOC Appeal No. 01975435 (July 8, 1998), req. to

recons. den., EEOC Request No. 05981075 (January 22, 1999).

B. Individual Complaints (01994921 and 01995607)

Individual claims that fall within the definition of a class complaint

cannot be dismissed; they must be subsumed into the class claims.

See Equal Employment Opportunity Management Directive for 29 C.F.R. Part

1614 (EEO MD-110), at 8-4 (November 9, 1999). If the class eventually

fails, then complainant may resume processing such claims as individual

complaints of discrimination. See id. Complainant raises several matters

in her individual claims covered by the certified class. Specifically,

complainant alleged a failure to promote in claim (e) of 01994921, and

claims (ii), (iii), and (viii) of 01995607.<6> Although claim (e) was

accepted for investigation and is currently pending before the agency,

it must be subsumed within the class. Claims (ii), (iii), and (viii)

must be remanded to be subsumed in the class complaints.

Complainant's remaining individual claims do not concern matters within

the definition of the certified class. Claims alleging the same matter

previously raised in an MSPB appeal must be dismissed. See 29 C.F.R. �

1614.107(a)(4). Similarly, complaints stating the same claim pending

before or decided by the agency or Commission also must be dismissed.

See 29 C.F.R. � 1614.107(a)(1). The record indicates that complainant

proceeded with the MSPB appeal concerning her downgrade and early attempts

at reinstatement. Complainant argues that her MSPB and subsequent EEO

claims involve reinstatement to different positions, and that each denial

of reinstatement should be investigated separately.

Generally, claims concerning requests for reinstatement state the

same claim as prior complaints involving such requests. See Tyler

v. United States Postal Service, EEOC Appeal No. 01A02261 (Jul. 19,

2000) (citing Price v. Department of the Navy, EEOC Appeal No. 01973867

(July 9, 1998)); Walker v. United States Postal Service, EEOC Appeal

No. 01983267 (Sept. 22, 1999) (finding that a claim is not reactivated

merely by requesting reinstatement again). However, when complainant's

circumstances have changed since her previous request such that she

would expect a different result, the subsequent reinstatement request

may involve a separate, cognizable claim. Tyler v. United States

Postal Service, supra; See Lopez v. United States Postal Service, EEOC

Appeal No. 01976459 (Jan. 8, 1999) (citing Cramer v. United States

Postal Service, EEOC Appeal No. 01911326 (Aug. 16, 1991) req. for

recons. den. EEOC Request No. 05910908 (Jan. 7, 1992)).

In the present complaints, complainant has not shown any change in

circumstances since she originally requested reinstatement. Therefore,

the Commission finds that complainant's subsequent reinstatement claims

raise the same matter previously alleged. The agency's dismissal of claim

(a) from 01994921 for stating the same matter raised with the MSPB was

proper. Further, the agency correctly dismissed claim (i) of 01995607,

for stating the same claim raised in claim (a).

The agency also may dismiss moot claims. See 29 C.F.R. �

1614.107(a)(5). To determine whether the issues raised in complainant's

complaint are moot, the factfinder 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.

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 (Nov. 12, 1992), req. for recons. den., EEOC

Request No. 05930306 (Feb. 1, 1993). Where the complainant alleges

compensatory damages, and the agency fails to address the damages claim,

it cannot dismiss the claims for being moot.

In the present complaint, complainant requested $500,000 compensatory

damages in counseling.<7> Complainant attached a copy of the Counselor's

Report to her formal complaint, yet the agency failed to address

compensatory damages in its final decision. Accordingly, the agency's

dismissal of claims (b), (c), (d), (f), and (g) of 01994921 for being

moot was improper.

The agency dismissed all of 01995607 for stating the same claims alleged

in 01994921. The Commission finds that claims (iv) (inappropriate work

assignments), (vii) (travel and IMPACT card denials), and (ix) (breach of

confidentiality) state the same claims raised in (f)(inappropriate work

assignments), (g)(travel and IMPACT cards), and (b)(confidentiality),

respectively. Therefore, the agency properly dismissed claims (iv),

(vii), and (ix) for stating the same claims raised in 01994921. However,

claims (v) (reassignment to field positions) and (vi) (proposed evaluation

of �satisfactory�) are not identical to any claim raised in 01994921.

These matters must be remanded for further processing.

CONCLUSION

Accordingly, the agency's dismissal of the class complaint (01986510) with

respect to non-Native American class members, and the claim involving

segregation of troublemakers into OPEL is AFFIRMED. The agency's

dismissal of the class as defined by the AJ is REVERSED, and the class

is REMANDED for discovery as provided below. Concerning 01994921,

the dismissal of claim (a) is AFFIRMED. The agency's dismissal of the

remaining claims is REVERSED, and the claims are REMANDED for further

investigation. Additionally, the agency must subsume claim (e) within the

class complaint. Concerning 01995607, the agency's dismissal of claims

(i), (vii), and (ix) is AFFIRMED. The agency's dismissal of claims

(ii), (iii), and (viii) are REVERSED, and these claims are REMANDED for

consolidation into the class complaint. Additionally, the dismissal

of claims (v) and (vi) is REVERSED, and these matters are REMANDED for

further investigation.

ORDER

The agency is ordered to perform the following:

Notify potential class members of the accepted class claim within fifteen

days of the date this decision becomes final, in accordance with 29

C.F.R. � 1614.204(e).

Forward a copy of the class complaint file and a copy of the notice to

the appropriate EEOC District Office within thirty days of the date this

decision becomes final. The agency must request that an administrative

judge be appointed to conduct discovery for the certified class claim,

in accordance with 29 C.F.R. � 1614.204(f).

Subsume claim (e) of 01994921 and claims (ii), (iii), and (viii) of

01995607 into the class complaint.

Acknowledge receipt of remanded claims (b), (c), (d), (f), and (g) from

01994921, and (v) and (vi) from 01995607. To avoid further fragmentation,

these claims must be held in abeyance during the pendency of the class

complaint. The agency must notify complainant of the claims' status,

and immediately resume processing the claims at the conclusion of the

class complaint process.

Send a copy of all notices and letters ordered above 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 19, 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, where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at www.eeoc.gov.

2The Commission does not enforce the Indian Preference Act, 25

U.S.C. � 472. This act requires agencies to establish separate hiring

criteria for Native-American applicants in positions concerning �the

administration of . . . services affecting any Indian Tribe.� The agency

must grant preference to any Native-American who meets the criteria for

�hiring, reassignment, transfer, competitive promotion, reappointment,

reinstatement, or any other personnel action intended to fill a vacancy.�

Indian Health Service Circular No. 87-2. Failure to apply the act, by

itself, is not proof of Title VII employment discrimination. See Dionne

v. Shalala, 209 F.3d 705 (8th Cir. 2000), reh'g en banc den. 2000

U.S. App. Lexis 15321 (June 27, 2000), petition for cert. filed (U.S.,

Sept. 25, 2000) (No. 00-468).

3Complainant refused to provide copies of the completed questionnaires,

citing fears of retaliation against the respondents. Instead, she

provided a summary of the results.

4Complainant raised a separate appeal in MSPB Docket

No. DC-3443-98-0821-I-1, concerning the agency's failure to select

complainant for two positions under the Indian Preference Act in

January 1997. The Board dismissed the claims for lack of jurisdiction.

5Despite the agency's reluctance to produce statistical evidence, the

Commission finds no grounds for sanctioning the agency in the present

complaint. The AJ never requested specific information from the agency,

nor found that the agency failed to comply with any order issued during

the certification process.

6With regard to claim (ii), the Commission reiterates that it does not

enforce the Indian Preference Act. This claim must be subsumed only to

the extent she contends that she was not granted the reassignments on

the bases of race and sex in violation of Title VII.

7The Commission notes that compensatory damages in federal employee

discrimination complaints may not exceed $300,000. See Damaino v. United

States Postal Service, EEOC Request No. 05980311 (Feb. 26, 1999)

(citing Sec. 102 of Civil Rights Act of 1991).