01A12123_r
05-11-2001
Theresa J. Bedner, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Theresa J. Bedner v. Department of Transportation
01A12123
May 11, 2001
.
Theresa J. Bedner,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A12123
Agency No. DOT-2-01-2002
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
On September 28, 2000, complainant filed a formal complaint claiming that
she had been discriminated against on the bases of sex and in reprisal for
prior protected activity when her supervisor harassed her in a continuous
manner. Complainant claimed that management refused to address her
concerns and had allowed the harassment against her to escalate. In her
complaint, complainant raises numerous claims concerning unwelcome remarks
about her physical appearance as well as claims concerning her leave (on
June 22, 2000, her supervisor questioned her leave); verbal reprimands
(on June 25, 2000, complainant's supervisor verbally reprimanded her
in an aggressive, and confrontational manner); attempts to prevent her
from seeking her EEO rights (on September 6, 2000, management tried to
force complainant to accept mediation of her informal complaint and when
she refused, told complainant her work conduct would be followed up on
a regular basis); and unfounded accusations (on September 15, 2000,
management made unsubstantiated accusations regarding insubordination,
timeliness to work and her work conduct after complainant refused to
rescind her informal complaint).
In its final decision, the agency distilled the complaint into only two
separate claims: complainant was verbally reprimanded on June 25, 2000,
and on September 15, 2000, managment made unsubstantiated accusations.
The agency dismissed the claims for failure to state a claim after finding
that they were not enough to support a claim of hostile work environment.
On appeal, complainant contends, inter alia, that the harassment against
her continues and that her supervisor gives her duties and assignments
that are outside the normal rotation. Complainant argues that her
supervisor has suggested that complainant is not prepared for the job
and that she has the job because she is attractive.
A fair reading of the record shows that complainant claims that she has
been subjected to harassment by her supervisor on a continuous manner.
The alleged harassment consists of unwelcome remarks about her physical
appearance; unwarranted reprimands; attacks on complainant's professional
abilities and/or knowledge; monitoring of her work conduct; and finally,
an incident in which management made unsubstantiated accusations
regarding insubordination, timeliness to work, and her work conduct after
complainant refused to rescind her informal complaint. Considering that
most of the identified actions were all perpetrated by complainant's
supervisor, and viewing the identified remarks, comments and incidents
in the light most favorable to complainant, we find that complainant has
stated a cognizable claim under EEOC Regulations. See Cervantes v. USPS,
EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's final decision dismissing the complaint for
failure to state a claim is REVERSED. The complaint is hereby REMANDED
for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
May 11, 2001
__________________
Date