01a51866_r
02-03-2006
Tamar N. Clarke, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Tamar N. Clarke v. Department of Health and Human Services
01A51866
February 3, 2006
.
Tamar N. Clarke,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A51866
Agency No. NIH-NLM-EEO-2004-0003
DECISION
Upon review, the Commission finds that the agency's decision dated
November 22, 2004, dismissing complainant's complaint for failure to
state a claim is proper pursuant to 29 C.F.R. �� 1614.107(a)(1). In her
complaint, dated August 31, 2004, complainant alleged discrimination when:
(1) she was not provided with professional development opportunities over
a seven and a half year period; and (2) she was constantly harassed and
threatened with the loss of her job by management.
The agency stated in its decision that in response to further
clarification of claim (1), complainant explained in her letter dated
October 24, 2004, that: (a) there had been ongoing problems regarding
NexTalk such that suggestions were made to set up a committee; (b)
she felt her work on the Diversity Council was not considered relevant
to systems work; (c) there was no guidance nor guidelines regarding the
Client software; (d) a senior colleague never followed up on a request;
and (e) she was disappointed when she was taken off of a project last
year. The agency determined, and we agree, that these incidents reflected
complainant's opinions and disagreements with her supervisor on how things
should be done and, thus, they did not state a claim.<1> The Commission
also does not find that the alleged actions were sufficiently severe or
pervasive to alter the conditions of her employment such as to state a
claim of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
With regard to claim (2), complainant clarified the subject matter by
indicating numerous incidents which allegedly occurred from 1996 to 2004.
Complainant indicated that the most recent incidents occurred when:
(a) on May 28, 2004, her supervisor threatened her with the loss of
her job in a meeting; (b) on July 2, 2004, the supervisor responded
to her prior electronic mail message in a disrespectful tone; and
(c) on October 19, 2004, the supervisor made a derogatory remark in
a meeting. The Commission has consistently held that a remark or
comment unaccompanied by concrete action is not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9,
1995). There is no evidence in the record that complainant was actually
subjected to any adverse action as a result of the alleged remarks.
Furthermore, the entire complaint is insufficiently severe and is too
vague to state a claim of harassment. Because of our disposition, we
do not address whether complainant timely contacted an EEO Counselor.<2>
Accordingly, the agency's decision dismissing the 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
February 3, 2006
__________________
Date
1It is noted that complainant did not provide any specific incident
dates for claim (1) in her complaint or in her clarification.
2 We note that complainant admits that she did not timely contact an
EEO Counselor.