0520120086
02-28-2012
______________________, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
______________________,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Request No. 0520120086
Appeal No. 0120092999
Agency No. HHSCDC12862008
DENIAL
Complainant timely requested reconsideration of the decision in
______________ v. Department of Health & Human Services, EEOC Appeal
No. 0120092999 (June 8, 2011).1 EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
In the appellate decision Complainant, a GS-7 Education Technician,
alleged that she was subjected to discrimination on the basis of reprisal
for prior EEO activity when she was verbally counseled by management
regarding a complaint made by a coworker. The coworker indicated
that Complainant had refused to make copies when the coworker asked.
Complainant told the coworker to ask the secretary because she was
working on another project. Complainant was called in to management’s
office to discuss the incident and she was told that in the past the
receptionist was responsible for assisting with photocopying as well as
other administrative duties. Complainant maintains that this incident
was another attempt by management to humiliate her, use incidents such
as this to lower her evaluation, and assign her duties not commensurate
with her normal assignments. Complainant asserted that as a result of
prior EEO activity she was subjected to a hostile work environment. The
Agency dismissed Complainant’s complaint for failure to state a claim.
The Commission affirmed the Agency’s finding of failure to state
a claim. The Commission found that Complainant provided no specific
facts regarding the alleged humiliation or evidence that her performance
appraisal was actually lowered. The Commission found that Complainant
had not shown that the alleged harassment was so severe or pervasive to
state a claim of harassment. Additionally, the Commission noted that
Complainant had not shown that the alleged harassment was reasonably
likely to deter her or others from engaging in protected EEO activity.
REQUEST FOR RECONSIDERATION
In Complainant’s request for reconsideration she maintains that the
appellate decision involved an erroneous interpretation of material facts.
She maintains that, as of May 15, 2008, she has received tasks she feels
were a reduction of assignments of her usual duties. She maintains that
the EEO Counselor characterization of the facts in her case severely
fragmented her complaint. She indicates that she would have never visited
an EEO Counselor for one counseling incident. Complainant asserts that
her claim included: increased write-ups/counseling from management (more
than one incident); lowering of duties; lowering of her performance
evaluations; and denial of training (not mentioned in pre-complaint,
but mentioned on appeal).
Further, Complainant maintains that she has been harmed by the Agency’s
retaliation in that she has not been able to teach as the position
description that she holds indicated that she would do. She also
indicates that following her EEO activity her performance appraisals
have been lowered from exceptional/outstanding to fully successful.
Complainant claims that she has been demoted “off of the record” and
believes that the level of work that she is being currently assigned is
equivalent to a GS-3. She contends that the lowering of her duties has
had a profound effect on her physical and mental health. Finally, she
maintains that she was not able to include other “chilling events”
that occurred from 2008-2010 because she did not know the procedure for
amending her complaint and because she thought her case had been lost.
Finally, she indicated that she will not raise these events at this point.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to
deny the request. We find that Complainant has failed to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial
impact on the policies, practices, or operations of the agency. We note
that a lowered performance appraisal is generally enough to show that
a Complainant has been aggrieved and it is also enough to likely deter
others from engaging in protected activity. As such, we would normally
deem such a case as stating a claim. The facts in this case however,
are distinguishable because Complainant only believed that these incidents
would be used to lower her performance appraisal, but it had not actually
occurred at the time of the complaint. Therefore, Complainant merely
speculated that she would be harmed. This does not make Complainant
aggrieved or indicates that he was subjected to an adverse action.
Therefore, we agree that the complaint does not state a claim.
Further, we find that even if we considered all of the contentions
addressed by Complainant during the complaint process, i.e., increased
write-ups/counseling from management (more than one incident); reduction
of duties; and the possible lowering of her evaluations. Complainant has
still failed to show that the incidents were severe or pervasive enough
to establish a hostile work environment. Accordingly, the decision
in EEOC Appeal No. 0120092999 remains the Commission’s decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the Court 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
__2/28/12________________
Date
1 While the decision is dated June 8, 2011, the record shows that
Complainant did not receive the decision. Therefore, the decision was
reissued on September 27, 2011, which makes the instant request for
reconsideration timely.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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