0120090518
03-06-2009
Maria E. Southerland, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Maria E. Southerland,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120090518
Agency No. HHSFDAORASE06008F
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 8, 2008, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the basis of disability (unspecified) when:
1. On February 21, 2008, complainant's supervisor (RMO1) denied her
request for a reasonable accommodation;
2. On June 3, 2008, complainant's second line supervisor (RMO2) made
insensitive comments to complainant in front of a co-worker;
3. On June 17, 2008, RMO1 told complainant that if she was one minute
late, she would be charged 15 minutes of Absent Without Leave (AWOL);
4. On September 22, 2008, RMO1 proposed a 21-day suspension for
complainant;
5. On August 27, 2008 RMO1 proposed placing complainant on a Performance
Improvement Plan (PIP); and
6. On August 27, 2008, RMO1 questioned complainant about a work
assignment.
The agency dismissed the claims prior to conducting an investigation.
Claim 1 was dismissed for untimely EEO Counselor contact. Specifically,
the agency found that complainant did not contact a counselor until June
2, 2008, which is beyond the forty five (45) day limit. Claims 2, 3,
4 and 6 were dismissed for failure to state a claim. Specifically,
as regards claims 2, 3, and 4, the agency found that the actions
were insufficiently severe to state a prima facie case of harassment,
and as regards claim 6, complainant failed to show she was aggrieved.
Finally, claim 5 was dismissed pursuant to 29 C.F.R � 1614.107(a)(5)
on the grounds that it was a proposed action.
On appeal, complainant argues that the agency erred in dismissing the
complaint and requests that the complaint be remanded to the agency for an
investigation. Specifically, as regards claim 1, complainant argues that
she had been in touch with the agency's EEO office since November 2007 and
that her counselor contact was therefore timely. As regards claims 2, 3,
and 4, complainant argues that medical evidence shows that the harassment
resulted in harm. As regards claim 5, complainant argues that a mere
warning of a PIP is sufficient to render a complainant aggrieved.
Complainant argues that she contacted the EEO office prior to June 2,
2008 and complainant submits on appeal a list of contacts complainant
made with the EEO office beginning on November 15, 2007. We find,
however, that complainant has not met her burden of establishing that
such contacts constituted intentional efforts by complainant to initiate
an EEO complaint. Complainant's own brief indicates that many of
these contacts were made in connection with a request for a reasonable
accommodation, or for other reasons, not for the purpose or intent of
filing an EEO complaint. For example the first contact on November 15,
2007 was to request a reasonable accommodation, the second contact the
following day was to provide medical documentation, the third three days
later was to "request assistance," and so on.
As regards claims 2, 3, and 6, the Commission finds that the claims fail
to state a claim under the EEOC regulations because complainant failed
to show that she was subjected to unwelcome verbal or physical conduct
involving her protected classes, that the harassment complained of was
based on her statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with her work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has she shown she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
As regards claims 4 and 5, we note that, pursuant to 29 C.F.R �
1614.107(a)(5) an agency shall dismiss a complaint "that . . . alleges
that proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory." Since both the 21-day
suspension and the PIP were merely proposals, we find the agency correctly
dismissed claims 4 and 5. As regards complainant's argument that she
incurred emotional harm from the agency's actions, we note that the
Commission has long held that where an allegation fails to render an
individual aggrieved, the complaint is not converted into a cognizable
claim merely because complainant alleges physical and/or emotional injury.
See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846
(March 11, 1994). Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 6, 2009
__________________
Date
2
0120090518
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090518