01A22882_r
03-10-2003
Pramoda Maturu, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Pramoda Maturu v. Department of Health and Human Services
01A22882
March 10, 2003
.
Pramoda Maturu,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A22882
Agency No. FDA-D-014-02
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �1614.107(a)(5), on the grounds
that the complaint alleged that a proposal to take a personnel action,
or other preliminary step to taking a personnel action, is discriminatory.
In a formal EEO complaint filed on January 30, 2002, complainant claimed
that he was discriminated against on the bases of his national origin
(Indian), age (60), and sex (male) when: (1) on August 23, 2001,
his supervisor gave him a mid-term evaluation that criticized his
performance and asserted that he was failing to meet two of his five
elements (management of individual work and professionalism); and (2)
on September 25, 2001, his supervisor threatened to place him on a
performance improvement plan.
In its decision dated March 27, 2002, the agency stated with regard
to claim (1) that the preliminary evaluation did not become a part of
complainant's personnel file. The agency stated that the preliminary
evaluation's sole purpose was to show complainant where his supervisor
thought he was deficient. With respect to claim (2), the agency
determined that the verbal admonition did not lead to complainant being
placed on a performance improvement plan. The Commission requires
dismissal of complaints that allege discrimination in any preliminary
steps that do not, without further action, affect the person; for
example, progress reviews or improvement periods that are not a part of
any official file on the employee. The Commission finds that both claims
(1) and (2) were properly dismissed pursuant to 29 C.F.R. �1614.107(a)(5).
There is no evidence in the record showing that the mid-term performance
evaluation was placed in an official file related to complainant.
As for claim (2), the verbal threat to place complainant on a performance
improvement plan was no more than a preliminary step, and no evidence
has been presented that a performance improvement plan was effected.
Accordingly, the agency's decision is hereby AFFIRMED.<1>
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
March 10, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our affirmance of the agency decision on the grounds set
forth in 29 C.F.R. �1614.107(a)(5), we need not address the agency's
alternative grounds its dismissal of claim (1) due to untimely EEO
Counselor contact.