Mary S. Dowling, Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMar 26, 1999
01981673 (E.E.O.C. Mar. 26, 1999)

01981673

03-26-1999

Mary S. Dowling, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Mary S. Dowling v. Department of Health and Human Services

01981673

March 26, 1999

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