Johanna Moller, Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, (Nat. Institutes of Health), Agency.

Equal Employment Opportunity CommissionNov 25, 1998
01981622 (E.E.O.C. Nov. 25, 1998)

01981622

11-25-1998

Johanna Moller, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Nat. Institutes of Health), Agency.


Johanna Moller v. Department of Health and Human Services

01981622

November 25, 1998

Johanna Moller, )

Appellant, )

)

v. ) Appeal No. 01981622

) Agency No. NIH 96-067

Donna E. Shalala, )

Secretary, )

Department of Health )

and Human Services, )

(Nat. Institutes of Health), )

Agency. )

)

DECISION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from a final agency decision (FAD) concerning her

equal employment opportunity (EEO) complaint, alleging discrimination

on the bases of sex (female), and reprisal (prior EEO complaint),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The Commission hereby accepts the appeal in

accordance with EEOC Order No. 960.001.

The issue presented is whether appellant has proven, by a preponderance of

the evidence, that she was discriminated against on the above-referenced

bases when on or about December 5, 1995, she was informed that her

immediate supervisor, the Laboratory Chief (LC), would be listed as a

co-author on a research paper she was writing, provisionally entitled as

the "Trembling Ataxia Immobility Episodes Epilepsy and Paralysis (TAIEP)

Rat" paper.

On appeal, appellant contends that the LC did not deserve to be a

co-author on the paper as he contributed nothing worthwhile to the

project, while she had the ability to perform the research and publish the

article without help from the LC. In addition, appellant contends that

the publication of the paper was delayed because the experiment was set

up poorly with regard to the availability of animals by a contributing

official (CO), a Professor of Neurology. The agency did not reply to

appellant's contentions on appeal.

During the relevant time, appellant was employed as a Unit head at

the National Institute of Neurological Disorders and Stroke (NINDS),

National Institutes of Health (NIH). Believing that she was the victim

of discrimination, appellant sought EEO counseling and, thereafter, filed

the instant formal complaint on September 26, 1996. The agency accepted

the allegation and complied with all of our procedural and regulatory

prerequisites. Appellant did not request a hearing; therefore the agency

issued a FAD, finding no discrimination. Appellant now appeals the FAD.

In applying the analytical framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), we concur with the agency that appellant cannot

establish a prima facie case of discrimination based on sex, since she

has not cited a male comparative employee who received more favorable

treatment in similar circumstances. We further agree that appellant

cannot establish a prima facie case of discrimination based on reprisal,

since she proffered no substantive evidence that the LC's co-authorship

had an adverse effect upon her. In this respect, she alleged that since

LC was her supervisor, his co-authorship would automatically make him the

principal author of the article with a negative impact on her career.

Yet we note that the CO, an authority in the field, and one other

individual were also co-authors, and appellant did not object to their

participation, which also diluted the effect of her authorship.

Even assuming, arguendo, that appellant could establish a prima facie

case, the agency articulated a legitimate, nondiscriminatory reason for

making LC a co-author, namely, that the project was taking too long under

appellant's sole supervision, as attested to by a letter from the CO to

the LC and LC's affidavit in the file. Although appellant contended that

the publication of the research paper was delayed because the experiment

was set up poorly by the CO with regard to the availability of animals,

she submitted no substantive evidence that would prove this.

Accordingly, after a careful review of the entire record, including

arguments and evidence not specifically addressed in this decision,

it is the decision of the EEOC to AFFIRM the agency's final decision.

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. �l6l4.604(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. 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 (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:

Nov 25, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations