Mary Ann Manescu, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionAug 31, 1999
01990753_r (E.E.O.C. Aug. 31, 1999)

01990753_r

08-31-1999

Mary Ann Manescu, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Mary Ann Manescu, )

Appellant, )

)

v. ) Appeal No. 01990753

) Agency No. F-97-5024

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

______________________________)

DECISION

On November 5, 1998, appellant filed an appeal with this Commission

from a final agency decision (FAD) dated September 23, 1998, pertaining

to her complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq.<1> In her complaint, appellant alleged that she was subjected

to discrimination on the bases of sex (female), marital status, sexual

orientation, and retaliation when:

Appellant did not receive a No-Cost Common Household Transfer; and

Appellant received telephone calls and a letter from the FBI's Office

of General Counsel (OGC) demanding the return of a report.

The agency accepted allegation (1) on the basis of sexual orientation

by letter dated November 10, 1997. By letter dated February 23, 1998,

the agency amended its acceptance to include the basis of sex. In its

September 23, 1998 FAD, the agency dismissed the basis of marital status,

and allegation (2), pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),

for failure to state a claim.

On appeal, appellant argues, through her attorney, that marital status

is a protected class under the agency EEO guidelines set forth at 28

C.F.R. �42.1. Regarding allegation (2), appellant argues that the

telephone calls and letters she received were threats, harassment and

intimidation by her superiors in the agency, which affected the terms,

conditions, and privileges of appellant's employment. Appellant explains

that the report was very sympathetic to her complaint, but now is being

disavowed by the agency.

In response, the agency argues that regardless of the agency's policy

against discrimination on the basis of marital status, the issue is not

within the purview of the EEOC. The agency also argues that appellant

has not been aggrieved by allegation (2).

In appellant's formal complaint, dated August 17, 1997, appellant explains

that she received a report from the OGC, and then received �numerous�

intimidating phone calls from several agency officials demanding the

return of the document. The complaint further notes that appellant

received a letter dated July 31, 1997, which informed appellant that

the OGC reports were inadvertently sent to appellant, and should be

returned immediately.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (Apr. 21, 1994).

Even though an agency's internal EEO regulations may prohibit

discrimination on the basis of marital status, the EEOC only has authority

over federal sector complaints of discrimination on the bases of race,

color, religion, sex, national origin, age or disabling condition. See 29

C.F.R. �1614.103; �1614.106(a); Lee v. United States Postal Service, EEOC

Appeal No. 01965341 (Sept. 4, 1998) (marital status not covered by EEOC).

Therefore, the agency properly dismissed the basis of marital status.

Regarding allegation (2), in Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor

Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is

actionable if it is sufficiently severe or pervasive to alter the

conditions of the complainant's employment. The Court explained

that an "objectively hostile or abusive work environment" is created

when "a reasonable person would find [it] hostile or abusive: and the

complainant subjectively perceives it as such. Harris, supra at 21-22.

Thus, not all claims of harassment are actionable. Where a complaint

does not challenge an agency action or inaction regarding a specific

term, condition or privilege of employment, a claim of harassment is

actionable only if, allegedly, the harassment to which the complainant

has been subjected was sufficiently severe or pervasive to alter the

conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,

1997).

The Commission notes that appellant failed to establish how many

phone calls she received, the dates and times on which the phone calls

occurred, the name and/or position of the callers, or the substance

of the conversations. Therefore, the fact that appellant received

numerous calls, without further information, does not allege matters

sufficiently severe or pervasive to state a claim of hostile work

environment harassment, even when considered in conjunction with

appellant's accepted allegation.

CONCLUSION

Accordingly, the agency's decision is AFFIRMED.

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:

August 31, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The agency was unable to supply a copy of a certified mail return receipt

or any other material capable of establishing the date appellant received

the agency's final decision. Accordingly, since the agency failed to

submit evidence of the date of receipt, the Commission presumes that

appellant's appeal was filed within thirty (30) days of receipt of the

agency's final decision. See, 29 C.F.R. �1614.402.