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).