01A30545_r
03-18-2003
Karen S. Maurer, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Karen S. Maurer v. Department of the Treasury
01A30545
March 18, 2003
.
Karen S. Maurer,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A30545
Agency No. 02-4188
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated September 24, 2002, dismissing her complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In a formal EEO complaint dated May 15, 2002, complainant alleged that
she was discriminated against on the basis of age. Complainant claimed
that she was subjected to a hostile work environment when a younger
female employee was routinely awarded preferential treatment by the Port
Director. After the agency requested further information, complainant
cited the following sixteen specific incidents in support of her claim:
(1) Complainant's husband applied and was best qualified for a GS-4
position in her office, but the vacancy announcement was canceled and
a younger female was hired for the re-announced and reclassified position;
The Port Director makes frequent daily visits to their office to
converse with the younger employee and/or summons her to his office
for prolonged periods;
Complainant has observed the Port Director and Assistant Port Director
put their hands on the younger employee's head and shoulder;
The Port Director has asked the younger employee to lunch on numerous
occasions, while complainant has received only one invitation, which
she refused;
The younger employee routinely reports to work approximately 5 to 20
minutes late, then applies her make-up for another 20 to 30 minutes;
The Port Director gave the younger employee a computer to use at home;
Complainant was not allowed to accept a gift box of chocolates given to
her by a former employee's mother for assistance that she had provided,
but that �it was just fine� for her to put the chocolates in the
administrative supervisors' office for them to share;
The Port Director placed a pecan pie on the younger employee's desk,
and no gift was provided to other employees;
The younger employee reports her absences to the administrative
supervisor or to the Port Director rather than the on-duty supervisor;
On February 4, 2002, the Port Director asked complainant when she
planned to retire;
On February 4, 2002, the Port Director discussed respective job
responsibilities with complainant and the younger employee, then told
complainant he wanted the younger employee to learn complainant's job
so she could cover it when complainant retires;
On February 4, 2002, the Port Director lectured the younger employee
and complainant on �getting along;�
When the younger employee leaves her desk, she transfers all her incoming
calls to complainant, which, at times, impedes complainant's ability
to use the restroom and delays her in accomplishing her job;
The younger employee has been allowed to take long lunch breaks, and
complainant has not been so allowed;
The younger employee has been allowed to conduct long personal phone
calls while on duty, and complainant has not been so allowed;
The younger employee has been allowed to contact various employees
daily to take lunch orders, while complainant has been instructed to
concentrate solely on her job.
On June 14, 2002, the agency dismissed complainant's hostile work
environment claim. Moreover, after assessing each claim individually,
the agency dismissed all but six of complainant's sixteen individual
claims for failure to state a claim. Thereafter, the agency issued a
final decision on September 24, 2002, that is the subject of the instant
appeal. Therein, the agency reiterated its earlier dismissals and then
also dismissed the six remaining claims for failure to state a claim.
Upon review, the Commission finds that complainant's hostile work
environment claim was improperly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1). A fair reading of complainant's complaint reflects
that she claims that she was subjected to a hostile work environment
based on her age when, among other matters, she was asked about her
retirement plans and was told to train a younger employee for her job,
and preferential treatment accorded to a younger employee affected her
ability to accomplish her work. We therefore find that, when viewed as
a whole in the light most favorable to complainant, complainant's claims
(2) through (16) are sufficient to state a hostile work environment claim.
However, regarding claim (1), the Commission determines that this claim
was properly dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1), as complainant was not personally aggrieved by
the incident described.
Accordingly, the agency's decision to dismiss claim (1) is AFFIRMED.
The agency's decision dismissing complainant's hostile work environment
claim, as encompassed by claims (2) through (16) above, is REVERSED,
and the claim, as defined herein, is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
March 18, 2003
__________________
Date