01A04845_r
01-04-2001
Alice J. Muller, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Alice J. Muller v. Department of Health and Human Services
01A04845
January 4, 2001
.
Alice J. Muller,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A04845
Agency No. IHS-038-97
DECISION
Complainant timely appealed the agency's May 24, 2000 decision finding
of no discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. or the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was discriminated against on the bases of race (Eskimo), age (over 40),
and in reprisal for prior EEO activity when:
(1) The agency delayed complainant's career development plan;
A coworker made an inappropriate remark that management �failed to deal
with;� and
On January 6, 1997, complainant was not selected for a GS-11 Computer
Specialist position under Vacancy Announcement No. ANC-96-236.
Complainant, a GS-9 Computer Specialist at the agency's Alaska Native
Medical Center in Anchorage, Alaska, filed a formal complaint on March 5,
1997. The agency accepted her claims for investigation on June 4, 1997.
At the conclusion of the investigation, complainant requested that the
agency issue a final decision.
In its decision, the agency found no discrimination. Concerning claim
(1), the agency found that complainant suffered no cognizable injury.
Even presuming injury, the agency found a legitimate non-discriminatory
reason for its actions. Initially, complainant's supervisor (S1)
misunderstood her request and prepared a career performance plan for
complainant rather than a career development plan. Once the error was
discovered, the supervisor began drafting another plan, but complainant
was transferred to a different supervisor (S2). S2 discussed the plan
with complainant, and then promptly completed the draft.
The agency also found that claim (2) failed to state a claim, because the
inappropriate comments did not amount to adverse employment actions.
Further, the agency found that S1 discussed the comments with the
coworker, and told him not to talk to complainant in that manner in
the future.
The agency reached the merits of claim (3), finding that complainant
failed to establish a prima facie case because she was not qualified
for the GS-11 Computer Specialist position.
On appeal, complainant argues, through her attorney, that she was ignored
for substantial periods of time and suffered �obfuscation of [her] career
development.� Complainant contends that her career development plan is
integrally related to her promotional opportunities. Concerning claim
(2), complainant asserts that her supervisor showed no concern for the
coworker's statements, and commented to complainant, �what do you want
me to do?� Complainant argues that the statements were so inflammatory
that standing by themselves, they state a cognizable claim of harassment.
Complainant also claims that she is qualified for the GS-11 Computer
Specialist position.
The investigation found that complainant requested a career development
plan so that she might receive the training/experience required
for promotions. In her affidavit, complainant noted that she sent
numerous e-mails detailing the type of training she wished to attend,
and requesting the status of her career development plan. Complainant
claimed that her supervisors �did nothing� until S2 drafted the plan in
April 1997, which complainant signed in May 1997. Further, complainant
argues that the agency failed to provide any training outlined in the
plan until August 1997.
S2, in her affidavit, detailed weekly meetings with complainant to
discuss the intricacies of the plan. After the details were thoroughly
discussed, S2 drafted the plan. According to S2, she scheduled three
hours of training a week for all Computer Specialists, but devoted it to
preparing the staff for a move to a new facility with different equipment.
Complainant also detailed her coworker harassment claim in her affidavit.
Complainant was not feeling well, and left early on sick leave.
The coworker saw complainant leaving, and stated �What, you got AIDS?�
Complainant was out for two days, and upon her return, the coworker
said, allegedly in a sarcastic tone, �I see you made it in to work
today.� Complainant raised the issues with her team leader, and with S1.
Complainant complains that the agency took no action against the coworker.
In S1's affidavit, he claims that he spoke with the coworker, and told
him not to speak to complainant in that manner again. The team leader
claims to have taken no action because she had no authority to discipline
employees.
ANALYSIS AND FINDING
The Commission recently certified a class of Native-American women
denied promotions to professional and technical positions above the GS-7
level since April 12, 1996. See Crazythunder, et al. v. Department of
Health and Human Services, EEOC Appeal No. 01986510 (Dec. 19, 2000).
Complainant's nonpromotion claim falls within the class as certified
by the Commission. Individual claims, filed before or after the
class complaint is filed, which come within the definition of the
class claims must be subsumed into the class complaint. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), ch. 8, � III (C) (Nov. 9, 1999); see also Dunbar v. Social
Security Administration, EEOC Request No. 05981075 (Jan. 22, 1999)
(reiterating order that individually dismissed claims be subsumed into
class complaint). If the class eventually fails, then the processing
of her individual claims may resume. See EEO MD-110 at ch. 8, � III
(C). If the class proceeds to a hearing, the individual claim may
be presented by the class representative at the liability stage of the
process, or it may be presented at the remedy stage by complainant. Id.
Since claim (3) fits within the definition of the certified class,
the claim must be remanded to be subsumed into the class complaint.
See Glover v. United States Postal Service, EEOC Appeal No. 01990912
(July 17, 2000) (finding of no discrimination vacated and remanded to
be subsumed in class complaint).
The remaining claims do not relate to the matters certified in
Crazythunder v. Department of Health and Human Services, EEOC Appeal
No. 01986510 (Dec. 19, 2000). Therefore, these matters need not be
subsumed into the class complaint. Cf. Walton v. Department of the
Navy, EEOC Request No. 05980013 (June 17, 1999) (ordering agency to
investigate claims not subsumed by class action filed in district court).
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 (Apr. 21, 1994).
The Commission agrees that complainant failed to state a claim with
respect to claim (2). She has not shown any cognizable injury from
the agency's actions. Furthermore, complainant has not shown that
the incidents at issue in claim (2) rise to the level of actionable
harassment. Although claim (1) states a claim, complainant failed to
provide any evidence that the agency's articulated reason was a pretext
for discrimination. Accordingly, the agency's dismissal of claim (2)
and the finding of no discrimination in claim (1) were proper.
CONCLUSION
Accordingly, the agency's finding with regard to claims (1) and (2)
is AFFIRMED. However, the agency's finding of no discrimination for
claim (3) is VACATED, and the claim is REMANDED to be subsumed within
the class complaint referenced in this decision.
ORDER
The agency is ordered to process claim (3) in accordance with 29 C.F.R. �
1614.108, 29 C.F.R. � 1614.204, and EEOC Management Directive 110.
Specifically, the agency must subsume claim (3) within the certified class
complaint of Crazythunder v. Department of Health and Human Services,
EEOC Appeal No. 01986510 (Dec. 19, 2000). If the class complaint fails,
then complainant shall be given the opportunity to proceed with her
claim as an individual complaint. The agency shall acknowledge to the
complainant that it has received the remanded claim within 30 calendar
days of the date this decision becomes final, and has subsumed it within
the class complaint. The agency must provide complainant notice of the
class complaint as outlined in 29 C.F.R. � 1614.204.
A copy of the agency's letter of acknowledgment to complainant 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 (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
January 4, 2001
__________________
Date