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).