01982611
05-28-1999
Diane Gutierrez, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Diane Gutierrez v. Department of Health and Human Services
01982611
May 28, 1999
Diane Gutierrez, )
Appellant, )
)
v. ) Appeal No. 01982611
) Agency No. IHS 008-98
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On February 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated January 22, 1998, pertaining
to her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. In her complaint, appellant alleged that she was subjected to
discrimination on the basis of race (Native American) when:
In April 1995, the Clinical Director tore up a letter in front of
appellant that appellant had written;
In November 1995, the Clinical Director stated "Don't look at me,
I already have my own yellow bleeding dog;"
On November 6, 1996, the Clinical Director stated "That's what you get,
when you have Indian Preference hiring practices, you just can't hire
good managers and administrators when you have those kinds of rules in
the way;"
On December 4, 1996, the Clinical Director asked appellant why she had
not pulled the records for the new psychiatrist; and
On December 5, 1996, the Clinical Director told appellant's co-worker
that if they did not pull the medical charts of the psychiatrist,
he was going to dock each one of their EPMS.
The agency dismissed all of appellant's allegations pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically , the agency found that even if true, the allegations
do not amount to a cognizable claim of harassment. The agency also
noted that in allegation (1), the Clinical Director called the police
and requested that they initiate an investigation into the matter that
appellant complained of in the letter, and in allegation (2), the Clinical
Director was referring to a patient, and not appellant.
On appeal, appellant alleges, through her attorney, that her complaint was
improperly processed, and that appellant was placed on call twenty-four
(24) hours a day without relief. Appellant also argues that the
allegations present a pattern of discriminatory conduct substantial
enough to sustain a claim of harassment. Appellant explains that her
letter from allegation (1) asked the Clinical Director to take action
against a contractor who several patients accused of sexual molestation.
Further, appellant clarifies that the chart-pulling incidents from
allegations (4) and (5) involved the discriminatory assignment of menial
work far below appellant's level of responsibility as a social worker.
Appellant claims that the established procedure was for all mental health
personnel to retrieve their own charts, because there was no secretary.
Appellant further states that the Clinical Director insisted on giving
preferential treatment to an Anglo psychologist, and threatened to hold
appellant accountable for the psychologist's failures.
Appellant contends that her complaint was settled by a signed agreement,
which should be enforced. Appellant submits several documents to
support her appeal, including several letters exchanged between
agency officials, dated June 10, 1997, June 11, 1997, and June 13,
1997, discussing concerns about the proposed settlement agreement.
The June 13, 1997 letter, from a local office EEO official, expresses
frustration that upper management was refusing to ratify the agreement.
The letter claims that early stage settlement agreements should not be
reviewed and debated by management officials throughout the agency.
Appellant also submits a copy of a settlement agreement, signed in
May 1997, by appellant and five (5) agency officials: SFSU Clinical
Director, AAIHS/EEO Manager, Service Unit Director, Acting Executive
Director, and Area Director. A sixth signature block reserved for the
"Civil Rights/EEO Director of Headquarters East IHS," is not signed.
The Settlement Agreement addresses the Clinical Director's "pattern
of inappropriate behavior," and specifically mentions the filing issue
from allegations (4) and (5). Additionally, the Settlement Agreement
addresses the scheduling of employees for "on-call" duty. In response,
the agency notes that the Settlement Agreement was not signed by the
agency EEO Director, and claims that the EEO Director was the only person
authorized to make the agreement effective and binding for the agency.
The agency explained that the EEO Director had concerns with several
provisions from the Settlement Agreement, and therefore refused to sign
it. Further, the agency argues that it took no action to ratify the
agreement, and therefore the Settlement Agreement was not enforceable.
Upon review, we find that the issue of whether the subject complaint
has been settled furst must be resolved before the propriety of the
agency's January 22, 1998 dismissal can be addressed. In the present
case, appellant contends that the agency entered into a signed Settlement
Agreement, signed by five agency officials in May 1997, and the agency
subsequently refused to honor the agreement, and issued a final agency
decision on January 22, 1998. While claiming that the agreement was not
effective without the EEO Director's signature, the agency has submitted
no evidence, such as internal regulations or procedures showing that
the SFSU Clinical Director, EEO Manager, Service Unit Director, Acting
Executive Director, and Area Director were not authorized to enter into
settlement agreements with complainants. Even if the above officials
do not have the actual authority to bind the agency to a settlement,
the agency has provided no evidence to support its claim that the
officials did not have the apparent authority to act on behalf of the
agency, i.e., that they did not represent to appellant that they had
the authority to enter into a settlement agreement. Accordingly,
the Commission is unable to determine whether appellant and the agency
entered into a binding settlement agreement; and the agency's decision
to dismiss appellant's complaint is VACATED. This case is REMANDED for
a determination of whether a binding settlement agreement was entered
by appellant and the agency resolving the present complaint.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall add relevant documentation, including but not limited
to internal agency regulations, concerning the delegation of authority
for officials to enter into settlement agreements in the EEO process,
as well as information regarding the limitations on such authority.
2. The agency shall obtain statements from the relevant officials
concerning their perceived authority to bind the agency to the terms of
a settlement.
3. If the agency determines that a valid settlement agreement exists,
the agency shall notify appellant and commence appropriate implementation
of the terms of the May 1995 agreement.
4. If the agency finds no settlement agreement, the agency shall issue
a new final decision setting forth its determination regarding the
settlement agreement and addressing the acceptability of appellant's
complaint.
5. The supplemental investigation and issuance of notices and/or final
agency decisions must be completed within sixty (60) calendar days of the
date this decision becomes final. A copy of the notices and/or decisions
must be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
May 28, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations