0120061649
08-29-2007
Cathleen R. Sambrano, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Cathleen R. Sambrano,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200616491
Agency No. 04-68903-001
DECISION
Complainant appeals to the Commission from the agency's decision
dated December 7, 2005, finding no discrimination. In her complaint,
complainant, a Nurse Consultant, GS-11, at the agency's Military Medical
Support Office, Great Lakes, Illinois, alleged discrimination based on
race (Filipino), color (brown) and age (DOB: 12/31/46) when:
(1) On June 1, 2004, she received a decision that she would be suspended
for 14 calendar days, effective June 14 through 28, 2004; and
(2) In June/July 2004, her supervisor subjected her to harassment by
various means to include comments regarding her health, plans to retire,
and criticizing her English accent.
Therein, complainant also alleged discrimination:
(3) Based on race when in June 2002, she received a one-week suspension;
(4) Based on color when she had the least priority in matters of
promotions and step increases and her job performance was strictly graded,
while her peers were liberally graded;
(5) Based on disability when after a September 2002 incident when she was
found unconscious, her supervisor coerced her into attending a retirement
seminar for the purpose of medical retirement, and she was deprived of
an opportunity to attend a job-related seminar;
(6) In reprisal for prior EEO activity when in September 2001, her
supervisor was selected for a supervisory position for which complainant
had not applied and in a memorandum dated December 1, 2001, complainant
along with other staff members were instructed to complete new application
forms due to the disappearance of records; and,
(7) Based on sex when male employees received preferential treatment in
grade and step of employment because they were males.
Initially, upon review, the Commission finds that the agency properly
dismissed claims (3) through (7) due to untimely EEO Counselor contact
pursuant to 29 C.F.R. � 1614.107(a)(2). The record, undisputed by
complainant, indicates that the alleged incidents therein occurred prior
to 2003, but she did not contact an EEO Counselor until July 13, 2004,
which was beyond the 45-day time limit set by the regulations. On appeal,
complainant does not provide any adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
The record indicates that after completion of the investigation of claims
(1) and (2), complainant requested a final decision without hearing. The
agency then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant established a prima facie case of discrimination, finds
that the agency articulated legitimate, nondiscriminatory reasons
for the alleged incidents. With regard to claim (1), complainant's
supervisor stated that complainant was issued the alleged suspension
due to: her failure to carry out a direct order resulting in delay
of medical care; her delay in carrying out a work assignment; and her
delay in carrying out a work assignment and inappropriate comments for
incidents that occurred during the period March 3 through 27, 2004.
Complainant does not deny the foregoing charges against her. Instead,
on appeal, complainant indicates that she "deserved [a] 5-day suspension"
instead of the alleged 14-day suspension.
With regard to claim (2), complainant's supervisor denied making the
alleged comments. The supervisor noted that complainant was not forced
to attend a retirement class; rather, it was requested. The supervisor
also stated that complainant attended the TRICARE training and was
never denied job-related training. After a review of the record, the
Commission finds that the alleged incidents are not sufficiently severe
to state a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Furthermore, complainant
failed to show that claims (1) and (2) were motivated by discrimination.
Accordingly, the agency's decision finding no discrimination with regard
to claims (1) and (2) and dismissing claims (3) through (7) is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
August 29, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120061649
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036