Melissa K. Taylor, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMay 26, 2005
01a50372 (E.E.O.C. May. 26, 2005)

01a50372

05-26-2005

Melissa K. Taylor, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Melissa K. Taylor v. Department of the Interior

01A50372

May 26, 2005

.

Melissa K. Taylor,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01A50372

Agency No. FNP-2004-31

DECISION

Upon review<1>, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim. In a complaint dated February 18, 2004, complainant

alleged that she was subjected to discrimination on the bases of sex

(female) and disability (pregnancy)<2> when, on October 3, 2003, she was

subjected to negative comments from her supervisor when requesting leave.

The Commission finds that the complaint fails to state a claim under the

EEOC regulations because complainant failed to show that 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). The record reflects that

the event giving rise to complainant's claim was a discussion between

complainant and her supervisor regarding complainant's leave usage.

No action was taken against complainant pursuant to that discussion,<3>

and the discussion as recounted by complainant does not rise to the level

of actionable harassment. See Cobb v. Department of the Treasury, EEOC

Request No. 05970077 (March 13, 1997). Accordingly, the agency's final

decision dismissing complainant's complaint is 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

May 26, 2005

__________________

Date

1The Commission notes that the agency's final decision is dated July 19,

2004. Complainant did not file the instant appeal until October 12, 2004.

The final decision was served on complainant by certified mail, but the

agency has not produced evidence of the date on which complainant received

the decision, nor argued that the appeal is untimely. Accordingly,

complainant's appeal is deemed timely filed. See 29 C.F.R. � 1614.402(b).

2The Commission notes that pregnancy discrimination falls within the

ambit of sex discrimination as prohibited by Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.

3The record reflects that approximately two months later, complainant

was placed on leave restriction. There is no evidence that complainant

raised the matter of the leave restriction at any time prior to the

instant appeal. The Commission notes that new claims of discrimination

may not be raised for the first time on appeal. See Peterson v. Dept. of

the Navy, EEOC Appeal No. 01953811 (October 27, 1995).