01982006
09-13-2000
Cheryl DiFruscio, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Cheryl DiFruscio v. Social Security Administration
01982006
September 13, 2000
.
Cheryl DiFruscio,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01982006
Agency No. 001596
Hearing No. 160-96-8570X
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and reprisal (prior EEO activity) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> For the reasons stated herein, the agency's FAD is affirmed.
During the period in question, complainant was employed as a Claims
Representative, GS-11, in a Massachusetts facility of the agency.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint alleging that the
agency discriminated against her based on the above-stated bases when
her second line supervisor, an Assistant District Manager (ADM) for the
agency, harassed her and treated her different than those outside of
her protected classes. Specifically, complainant alleged that the ADM
(1) publicly admonished her for taking her break late when in fact she
was not late; (2) failed to inform her of the availability of additional
overtime; (3) accused her of inappropriately signing up for credit hours;
(4) assigned her a claimant interview five minutes before her meeting with
an EEO Counselor<2>; and (5) opened her mail from an EEO Counselor which
was inside of an agency envelope stating �Do Not Open in Mail Room� in
big, red letters. Complainant added that her first line supervisor, an
agency Operations Supervisor (OS), accused her of discussing confidential
claimant information with security officers assigned to the field office
and instructed her to no longer communicate with security officers on
duty.
Complainant stated that the agency's actions were discriminatory
because the ADM treated males in the office different than females and
he was hostile to her ever since she filed a class complaint based on sex
against him in Spring 1993. She indicated further that the OS typically
was following the instructions of the ADM when she reprimanded her.
The ADM indicated that on the occasions that he did reprimand complainant
or suggest that she be reprimanded; the reprimand was justified<3>, done
in an amicable manner, and motivated by non-discriminatory reasons only.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed to
establish a prima facie case of discrimination based on sex or reprisal.
The agency issued a FAD adopting the AJ's finding of no unlawful
employment discrimination based on sex or reprisal. This appeal
followed.
Where a complainant does not suffer a present harm or loss regarding
a term, condition, or privilege of employment, she may still state
a claim where the complaint claims, taken together and treated as
true, are sufficient to state a hostile or abusive environment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). A hostile or abusive work environment claim requires that a
complainant allege facts which, if proven true, may indicate that the
complainant was subjected to harassment that was severe or pervasive
enough to alter the conditions of her employment. Id. In making such
a determination, the Commission has considered �whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive.� Id.
The Commission has repeatedly found that unless the conduct is very
severe, a group of isolated incidents will not be regarded as creating
a hostile work environment. See Phillips v. Dep't of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996). A supervisor's remarks on
several occasions unaccompanied by any concrete action are usually not
sufficient to state a claim of harassment. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996).
In the instant case, after considering all of the circumstances
which includes the frequency of the alleged discriminatory conduct,
its severity, whether it was physically threatening or humiliating as
opposed to a mere offensive utterance, and whether it interfered with
the complainant's work performance;<4> the Commission finds that the
complainant challenged six isolated incidents that even when viewed in a
group do not state a claim of harassment. Accordingly, the complainant
failed to establish discriminatory harassment by the agency.
Further, to the extent complainant alleged disparate treatment,
she did not establish a prima facie case of discrimination based on
sex or reprisal. For her claim of disparate treatment based on sex,
complainant failed to provide comparative evidence which would show that
she was treated different than those outside of her protected class
or objective evidence to establish an inference of discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); O'Connor
v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996). For her claim
of disparate treatment based on reprisal, complainant failed to show a
causal connection between any of the alleged discriminatory incidents
and her prior EEO activity.<5> Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D.Mass), affirmed,
545 F.2d 222 (1st Cir. 1976); Simens v. Department of Justice, EEOC
Request No. 05950113 (March 28, 1996) (citations omitted).
Accordingly, the complainant has failed to prove that the agency harassed
her or discriminated against her based on sex or reprisal. It is the
decision of the Commission to AFFIRM the agency's final decision in this
matter finding no harassment and no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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. If you
file a request to reconsider and also file a civil action, 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
September 13, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Issue (4) was not listed as an issue in the agency's letter of complaint
acceptance; however, issue (4) is discussed throughout the remainder of
the record.
3The ADM admitted that in reference to issue (1) of complainant's claim,
his reprimand of complainant was erroneous because he was misinformed
about break times. His supervisor, the District Manager, later issued
a written apology indicating that management had incorrect information
about break times.
4See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000).
5Complainant's prior EEO activity was a class complaint based on
sex naming her ADM as the responsible management official. The class
complaint was filed in either April or May 1993 but complainant withdrew
the complaint, as the last remaining class member, on February 28, 1994.
In addition, the ADM's actions appear consistent with office practices
and agency policies.