01984208
06-25-1999
Ernie B. Pagaduan, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Ernie B. Pagaduan v. Department of Health and Human Services
01984208
June 25, 1999
Ernie B. Pagaduan, )
Appellant, )
)
v. ) Appeal No. 01984208
) Agency No. IHS-012-98
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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. The final agency decision was issued on March
31, 1998. The appeal was postmarked April 25, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 17, 1997.
On November 10, 1997, appellant filed a formal EEO complaint wherein
he alleged that he was discriminated against on the bases of his race
(Asian-American) and national origin (Phillipino) when:
1. His mid-year performance for 1997, was unfairly evaluated.
2. He was denied medical services at the Acomita-Canoncito-Laguna
Service Unit.
In its final decision, the agency dismissed appellant's complaint on the
grounds that the complaint failed to state a claim. The agency determined
with regard to allegation 1 that no evidence or documentation was offered
that the mid-year performance evaluation was utilized in an official
performance appraisal covering the 1997 rating period. With respect to
allegation 2, the agency determined that unless a medical emergency is
involved, non-Indians are not entitled to obtain treatment in any Indian
Health Service facility. The agency noted that this policy is defined in
the Indian Health Manual. According to the agency, appellant provided
no information indicating that he was suffering a medical emergency at
the time that he was denied medical services. The agency concluded that
appellant failed to demonstrate that he suffered a personal loss or harm
to a term, condition, or privilege of his employment.
On appeal, appellant contends that prior to being denied medical services,
he had been continuously seen at the Indian Health Service facility
since being employed there in 1992.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) requires an agency to dismiss a
complaint or a portion of a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory.
Appellant alleged that the agency discriminated against him when he
was unfairly evaluated on his mid-year performance review for 1997. The
progress review did not result in a final rating for appellant. It was
merely a preliminary step in the performance appraisal process. We find
that appellant alleged that a preliminary step to taking a personnel
action was discriminatory. Accordingly, the agency's dismissal of
allegation 1 was proper for the reasons set forth herein and is AFFIRMED.
As for allegation 2, we find that this allegation does state a claim.
The agency's determination that it was not agency policy to provide
appellant, a non-Indian, medical services at its Indian Health Service
facility improperly addresses the merits of appellant's claim rather
than whether the allegation stated a valid claim, and is irrelevant to
the procedural issue of whether he has stated a justiciable claim under
Title VII. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August
15, 1991). Accordingly, the agency's decision to dismiss allegation 2
of appellant's complaint for failure to state a claim was improper and
is REVERSED. Allegation 2 is hereby REMANDED for further processing in
accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (allegation 2)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation (allegation 2)
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file
and also shall notify appellant 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 appellant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
June 25, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations