Margaret M. Barry, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 5, 1999
05970661 (E.E.O.C. Aug. 5, 1999)

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