01990753
08-31-1999
Mary Ann Manescu, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Mary Ann Manescu v. Department of Justice
01990753
August 31, 1999
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.