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rescinded and replaced by �a memorandum to the Supervisory Working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.