01a43052
07-12-2005
Geraldine H. Plummer, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Geraldine H. Plummer v. Department of the Army
01A43052
July 12, 2005
.
Geraldine H. Plummer,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A43052
Agency No. ARFTBENN01MAY000014
EEOC Hearing No. 110-2003-8492X-AES
DECISION
Complainant appeals to the Commission from the agency's decision dated
March 10, 2004, finding no discrimination. Initially, the agency, in its
August 29, 2002 decision, defined complainant's complaint as alleging
that complainant, a former Registered Nurse, GS-10, was discriminated
against based on race (Black), disability (spondylitis of cervical spine),
and in reprisal for prior EEO activity when: (1) on April 19, 2002,
her supervisor discussed her personal sick leave status in front of her
co-workers; (2) her supervisor denied her request for sick leave to go to
a doctor's appointment; (3) her supervisor informed her that she would be
removed from federal service if she did not accept reassignment to another
ward; and (4) on April 23, 2002, she was terminated from Civil Service.
In its decision, the agency dismissed claims (3) and (4) for raising
the same matters in an appeal to the Merit Systems Protection Board
(MSPB), pursuant to 29 C.F.R. � 1614.107(a)(4). The agency stated
that complainant elected to proceed with a MSPB appeal with regard
to her removal and the other issue was inextricably intertwined with
the removal. The record indicates that on October 10, 2002, the MSPB,
in its Docket No. AT-0752-02-0537-I-1, issued its decision affirming the
agency's decision to remove complainant. It is noted that EEO-MB, 100-1
(October 24, 2003) deleted Section II.B.4.d. of Chapter 4 under MD-110
(November 9, 1999). Thus, under this bulletin, the agency cannot dismiss
non-mixed matters with other mixed matters that are properly within the
jurisdiction of the MSPB.
Upon review, the Commission finds that the agency improperly dismissed the
reassignment claim which was not the mixed matter, i.e., complainant's
removal. Nevertheless, upon a thorough review of the complaint, the
Commission finds that complainant was not raising a separate claim
regarding being offered a reassignment. Thus, the Commission finds
that the agency misdefined claim (3) as a live actionable claim, and we
need not address such herein. It is noted that although complainant
was also informed in the removal notice that the agency accepted her
reassignment request, there is no evidence in the record that she
was actually reassigned as a result. To the extent that complainant is
raising such a claim, we find that such a claim is properly dismissed for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), because
she has not shown how she was harmed by such an offer. Furthermore,
the Commission finds that the agency properly dismissed claim (4).
With regard to claims (1) and (2), following the completion of
the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On October 8, 2003, the AJ issued an order
of dismissal of the hearing request since complainant failed to respond
the Acknowledgment or Scheduling and Procedure order by submitting a
pre-hearing conference report, the names of any proposed witnesses or
a telephone number where she could be reached. The AJ also noted that
complainant also failed to contact the AJ to appear for the pre-hearing
conference scheduled for October 20, 2003. Accordingly, the agency
issued its final decision finding no discrimination concerning the
subject matters.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged actions, described in claims (1) and (2). With regard
to claim (1), complainant clarified her complaint to indicate that her
supervisor made the alleged remarks on November 27, 2001 and March 11,
2002. The supervisor denied discussing complainant's sick leave usage.
Complainant's supervisor stated that she asked complainant to provide
a doctor's statement to document her absence for sick leave purposes
and to justify the reduced work shift. This request, according to the
supervisor, was not made in front of others, but was one-on-one with
complainant.
The agency indicated that in October 2001, complainant was issued a
sick leave restriction for six months because of her habitual use of
unscheduled sick leave and lack of documentation. Complainant's requests
for sick leave were denied on two occasions. The record indicates
that complainant's October 2001 sick leave request and December 3, 2001
request were denied because she was on sick leave restriction and she
failed to submit the required documentation.
The Commission finds that complainant failed to show that the agency's
reasons were pretext for discrimination. After a review of the record,
the Commission finds that complainant failed to show, by a preponderance
of the evidence, that she was discriminated against on the bases of race
or disability or in reprisal. The agency's decision is AFFIRMED.<1>
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
July 12, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability.