0120120950
05-08-2013
Teresa Walker, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Teresa Walker,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120120950
Agency No. HHS-IHS-0278-2011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 16, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounts Receivable Supervisor at the Agency's Areas Finance Office facility in Oklahoma City, Oklahoma.
On June 2, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (57), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: on or about March 2, 2011, Complainant received a rating of "minimally successful" from her supervisor (Supervisor). Complainant requested a rating of "fully successful" as relief.
The matter was accepted. The record indicated that Complainant retired from the Agency on May 21, 2011. The Agency noted that Complainant did not allege discrimination regarding the retirement. Subsequently, the Agency offered to settle the complaint by providing Complainant with the "fully successful" rating. Complainant failed to respond to the Agency's offer. Therefore, on September 30, 2011, the Agency submitted Complainant's complaint for processing.
During this time, the Agency requested by letter dated August 24, 2011, that Complainant provide support of her request for any compensatory damages. Complainant provided medical notes and her request for damages on October 24, 2011. The Agency's EEO Office received a copy of Complainant's performance appraisal on October 13, 2011, showing that Complainant's rating was changed to "fully successful."
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(5) finding that the matter was moot. The Agency noted that Complainant's performance appraisal at issue was changed to "fully successful." Further, the Agency analyzed Complainant's claim for damages. The Agency noted that Complainant sought $ 300,000 in non-pecuniary damages; back pay; front pay; pecuniary damages for medical bills and future medical bills. The Agency noted that Complainant only alleged discrimination regarding the single performance appraisal. As such, Complainant was not entitled to front or back pay. As to Complainant's claim for past and future medical bills, the Agency found that Complainant's medical documents failed to connect the medical expenses to the alleged discriminatory appraisal. As such, the Agency found that Complainant was not entitled to pecuniary damages. Finally, the Agency turned to Complainant's claim for $ 300,000 in non-pecuniary damages. The Agency noted that, similar to Complainant's request for pecuniary damages, Complainant failed to provide any statements that Complainant's conditions was related to the performance appraisal. The medical documentation noted that Complainant had been stressed due to the stressful experiences at work and harassment but did not specifically note that the stress was caused by the performance rating raised in the instant EEO complaint.
As such, the Agency found that the matter is now moot. Accordingly, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(5). This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. 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. Dep't 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.
Upon review of the record, we find that the matter is now moot. The record showed that Complainant retired from the Agency in May 2011 and that the Supervisor provided Complainant with a performance rating of "fully successful." As such, we find that there is no reasonable expectation that the alleged violation will recur. As to the issue of relief, we note that the rating was changed to "fully successful" as requested by Complainant. Further, the Agency asked to provide support her claim of compensatory damages. In support of Complainant's claim for compensatory damages, she provided medical bills and documents from her physicians. However, the Agency correctly held that the documents do not establish that Complainant's medical conditions were connected specifically to the performance appraisal alleged in the instant compliant. As such, Complainant has not shown that she is entitled to any pecuniary or non-pecuniary damages. In addition, Complainant asserted a claim for back pay and front pay. However, the only before the Commission is the performance appraisal. Complainant failed to allege that her retirement was due to discrimination. As such, we conclude that the Agency properly determined that there effects of the alleged discrimination have been eradicated. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(5) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 8, 2013
__________________
Date
2
0120120950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120950