Nina A. Bolduc, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionSep 5, 2002
01A12535 (E.E.O.C. Sep. 5, 2002)

01A12535

09-05-2002

Nina A. Bolduc, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.


Nina A. Bolduc v. Department of Labor

01A12535

9/5/02

.

Nina A. Bolduc,

Complainant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 01A12535

Agency No. 9-03-059

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted

pursuant to 29 C.F.R. � 1614.405. For the following reasons, the

Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Labor Management Assistant, GS-1802-06 at the agency's Office of

Labor - Management Standards, Philadelphia, Pennsylvania. Complainant

sought EEO counseling and subsequently filed a formal complaint on

January 7, 1999, alleging that she was discriminated against on the

basis of disability (asthma and post traumatic stress disorder) when

the Atlantic Region/Philadelphia District Director (hereafter Immediate

Supervisor) created a hostile work environment for her, including public

harassment and issuance of a memorandum of record regarding an April 23,

1998 incident, which alleged that complainant had engaged in misconduct.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its FAD, the agency found that the Immediate Supervisor issued the

April 23rd memorandum because on February 12, 1998, complainant refused

to follow instructions in connection with a priority computer project.

The agency also noted that ultimately, the April 23rd memorandum was

rescinded and replaced by �a memorandum to the Supervisory Working

File . . . .� Concluding that none of the challenged agency actions

were undertaken because of complainant's medical conditions, the agency

ruled that complainant failed to prove the existence of a hostile work

environment. Further, the agency held that the Immediate Supervisor

articulated a legitimate non-discriminatory reason for issuing the

contested memo which complainant failed to show was pretext.

On appeal, complainant contends that the agency has mishandled

her complaints. Complainant also noted in her appeal letter that

the complaint file the agency sent her was �grossly incomplete.�

Consequently, she sent several documents along with her appeal statement,

including leave slips and medical certificates, so that the Commission

may have a complete record upon which to render a decision. The agency

requests that we affirm its FAD.

ANALYSIS AND FINDINGS

The Commission concurs with the agency's determination that complainant

failed to establish a prima facie case of hostile work environment

discrimination based on her medical conditions.<1> Specifically, in prior

decisions, the Commission has held that in order to establish a case of

harassment a complainant must raise claims, that when considered together

and assumed to be true, are sufficient to state a hostile or abusive

work environment claim. See Estate of Routson v. National Aeronautics

and Space Administration, EEOC Request No. 05970388 (Feb. 26, 1999).

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment claims are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(Feb. 16, 1995).

Assuming arguendo that the allegations of harassment raised by complainant

are true, we find that they are not sufficiently severe enough to

unreasonably interfere with her work performance. Harris v. Forklift

Systems, Inc., 510 U.S. 17, 23 (1993). In addition, none of the examples

of harassment given by complainant resulted in any tangible loss of an

employment benefit.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

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 (S0900)

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

9/5/02

__________________

Date

1 For purposes of this case only, the agency, as does the Commission

proceeds, on the presumption that complainant is a disabled employee as

defined by the Rehabilitation Act.