01A24012_r
12-19-2002
Sheila R. Miller, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Sheila R. Miller v. Department of Health and Human Services
01A24012
December 19, 2002
.
Sheila R. Miller,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A24012
Agency No. CDC-HRMO-035-2002
DECISION
The Commission finds the agency's June 19, 2002 dismissal of complainant's
complaint proper. According to the decision, complainant alleges
discrimination on the bases of race, disability, age, sex, and retaliation
when: (1) on March 14, 2002, a Human Resources Management Office (HRMO)
employee who handles Workers' Compensation claims laughed when she made a
derogatory remark that complainant �must have been on some bad drugs� with
regard to the filing of her claim; and (2) on April 29, 2002, complainant
stated that she suffered continuous violations of the Rehabilitation
Act/Americans with Disabilities Act, violations of 29 C.F.R. �� 1630
and 1614, violations of CDC's union contract, and continuous on-going
retaliation prohibited by law. The agency dismissed claims 1 and 2
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that complainant is not an aggrieved employee. The agency
further dismissed claim 2 for stating the same claim that is pending
before or decided by the agency or Commission pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency found that claim 2 states the
same claim pending before the Commission in EEOC Appeal Number 01A20386.
First, we find the agency has misdefined the discriminatory act alleged
in complainant's complaint. Complainant alleges she was discriminated
against when the HRMO employee made the derogatory comment that she �must
have been on some bad drugs with regard to the filing of [her] claim.�
Complainant characterizes the event (the comment) as an ongoing pattern
of management not abiding by the laws cited by the agency in claim 2.
Therefore, we find that complainant's complaint consists of claim 1 only.
With regard to claim 1, we find that complainant's claim is not severe
or pervasive enough to state a claim of harassment. Further, complainant
has failed to show harm to a term, condition or privilege of employment.
Since the complaint is properly dismissed for failure to state a claim
pursuant to � 1614.107(a)(1), we will not make a determination on the
agency's other grounds for dismissal.
The agency's decision dismissing complainant's complaint is AFFIRMED
for reasons set forth herein.
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
December 19, 2002
__________________
Date