01981673_r
03-26-1999
Mary S. Dowling, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Mary S. Dowling, )
Appellant, )
)
v. ) Appeal No. 01981673
) Agency No. NIAAA-970072
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On December 29, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her attorney of record
on December 2, 1997, pertaining to her complaint of unlawful employment
discrimination in violation of �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In her complaint, appellant alleged
that she was subjected to discrimination on the bases of mental and
physical disabilities (major depression, anxiety disorder with panic
attacks and eating disorder) and in reprisal for prior EEO activity when:
On May 13, 1997, appellant received an �Unacceptable� 1996 performance
evaluation rating; and
On June 26, 1997, appellant was placed on a Performance Improvement Plan
(PIP).
The agency accepted allegation (1) for investigation and dismissed
allegation (2) pursuant to EEOC Regulation 29 U.S.C. �1614.107(e), for
alleging that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory. Specifically,
the agency determined that because appellant was not scheduled to be
reevaluated on her performance in accordance with the provisions of the
PIP until the end of January 1998, this allegation was premature.
The Commission finds that appellant's placement on a PIP was only a
preliminary step to taking a personnel action. The regulations at
29 C.F.R. �1614.107(e) provide for the dismissal of a complaint that
"alleges that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory." In the Section
by Section Analysis that accompanied the issuance of EEOC Regulations
29 C.F.R. �1614, the Commission explained that:
We intend [Section 1614.107(e)] to require 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.
See 57 Fed. Reg. 12643 (April 10, 1992); Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994); Blumner v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01952640 (January
19, 1996). When determining whether a record is in "any official file
on the employee," the concern is "with official records which could be
available to personnel other than the personnel responsible for the
challenged act." Id. (citation omitted). The agency argues, and the
appellant does not contest, that the PIP is not included in appellant's
official personnel record. Accordingly, the dismissal of allegation (2),
as it concerns the PIP, was proper, and the agency's final decision is
AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations