01991358
01-31-2001
Jeanne DiLoreto, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Jeanne DiLoreto v. Department of Health and Human Services
01991358
January 31, 2001
.
Jeanne DiLoreto,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01991358
Agency No. SAM-01-99
DECISION
Complainant filed a timely appeal with this Commission from the agency's
November 7, 1998 decision to dismiss her complaint of unlawful employment
discrimination. In her complaint, complainant alleged discrimination
on the bases of national origin (Italian) and in reprisal for prior EEO
activity when:
A coworker repeatedly misspelled complainant's name on correspondence;
Complainant was given an informal appraisal September 10, 1998; and
Complainant's detail was terminated September 21, 1998.
The agency dismissed the complaint for failure to state a claim,
finding that complainant requested her supervisor to complete an
informal appraisal. The agency also found that complainant's detail
was not terminated, but expired as scheduled on September 21, 1998
On appeal, complainant argues, through her attorney, that she was harmed
by the informal appraisal's attempt to discourage her use of the EEO
process, and the coworker's disregard for the correct spelling of her
name. Complainant also contends that she was notified that her detail
would be extended to December 21, 1998. Complainant notes that the
supervisor told complainant's coworkers about the present complaint.<1>
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege present harm inflicted on the basis of race, sex, religion,
national origin, age, disability, or prior protected activity. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
Claim (1) fails to state a claim. Complainant suffers no harm from this
action, even when considered in light of her other claims.
With regard to claim (2), the record contains a memo titled �Information
you requested about your behavior.� This memo denigrates complainant
for her �provocative behaviors which promote dissension and discomfort,�
and lists examples of complainant's �antagonistic and argumentative�
behaviors. One such example is that, �In late August you lodged an
EEO complaint of �non-sexual harassment' against a staff member . . .
which had many other possible avenues of resolution.� This memo clearly
criticizes complainant for using the EEO process, and discourages her use
of the process. The supervisor took further action to deter complainant's
EEO activity -- he told complainant's coworkers about her EEO activity.
These matters state a claim of reprisal. See EEOC Compliance Manual,
Vol. II, Sec. 8, �Retaliation,� No. 915.003, at 8-15 (May 20, 1998).
Claim (3) also states a claim. The agency's argument that the detail
expired, and that complainant was not told that the detail would be
extended, addresses the merits of her complaint. Whether the agency
actually told complainant that her detail would be extended, and
if so, its reasons for denying complainant the extension, should be
investigated.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is AFFIRMED. The
agency's dismissal of claims (2) and (3) is REVERSED, and the claims
are REMANDED for further investigation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
January 31, 2001
__________________
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 agency admits that the supervisor disclosed complainant's EEO
activity to the office.