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