05970661
08-05-1999
Margaret M. Barry, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Margaret M. Barry v. Department of the Treasury
05970661
August 5. 1999
Margaret M. Barry, )
Appellant, )
) Request No. 05970661
v. ) Appeal No. 01951285
) Agency No. TD 92 2141R
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On April 1, 1997, Margaret M. Barry (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Margaret M. Barry v. Robert E. Rubin, Secretary, Department of the
Treasury, EEOC Appeal No. 01951285 (February 27, 1997). The appellant
received the decision on March 3, 1997. EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
decision. 29 C.F.R. �1614.407(a). A party requesting reconsideration
must submit written argument or evidence which tends to establish one or
more of the following criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); the decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons that follow, appellant's
request is DENIED.
The issue presented is whether the previous decision properly found that
the agency did not discriminate against appellant: (a) based on sex with
regard to comments made by her immediate supervisor (S1) concerning the
identification of the putative father of her child; and based on reprisal
(b) when the second-level supervisor (S2) transferred her to another unit,
and (c) when S2 asked her to convert to part-time status. All of these
events took place in the early part of 1992. Following an investigation,
the agency issued a final agency decision (FAD) finding no discrimination.
On appeal, the previous decision affirmed the agency's action and found
that appellant failed to demonstrate that the agency's articulated reasons
were pretextual. Appellant has submitted a request for reconsideration
(RTR), without comment or argument.
In Issue (a), appellant alleged that S1 made comments to others concerning
the putative father of her child. The record shows that this matter was
the subject of limited office gossip on one or two occasions within a
short period of time. To the extent that appellant was alleging that
such remarks created a hostile or offensive work environment based
on sex, the Commission finds that the comments herein did not rise to
the level of harassment, in that, they were not sufficiently severe or
pervasive to have affected the terms or conditions of her employment or
to constitute illegal harassment. See Meritor Savings Bank v. Vinson,
477 U.S. 57, 62-67 (1986).
In response to Issue (b), concerning appellant's transfer to another
unit, we find that, although appellant stated a prima facie case of
discrimination based on reprisal, the agency, through S2, articulated
a legitimate, nondiscriminatory reason, i.e., he transferred appellant
to the companion work group under a different supervisor with whom she
did not have a history of conflict where she performed the same duties
on the same shift for the same wages. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). Manoharan v. Columbia University College of
Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). In response,
appellant failed to demonstrate that the agency's reason for its action
was pretext or based on discriminatory animus. St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
With regard to appellant claim's of reprisal when S2 asked her to convert
to part-time status, we find that she was not subjected to an adverse
action and does not establish a prima facie case of reprisal in this
situation. S2's request that appellant change her classification was
an administrative change sought as a convenience to the timekeepers.
Further, we note that when appellant rejected his request, S2 did
not pursue it. Appellant failed to show that she was subjected to an
adverse action and does not establish a prima facie case of reprisal.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc. and
Manoharan v. Columbia University College of Physicians and Surgeons,
supra.
Our review of the record does not reveal any reason to disturb the
ultimate decision of the previous decision. For the reasons stated
above, we find that appellant has not established sex-based harassment
or reprisal.
CONCLUSION
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c),
and it is the decision of the Commission to deny the appellant's request.
The decision in EEOC Appeal No. 01951285 (February 27, 1997) remains the
Commission's final decision. There is no further right of administrative
appeal on a decision of the Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
Aug. 5. 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat