01975721
09-09-1999
Wendy L. Boston, Appellant, Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Wendy L. Boston, )
Appellant, )
)
)
) Appeal Nos. 01975721
) 01980399
Robert E. Rubin, )
Secretary, ) Agency Nos. 97-1031
Department of the Treasury, ) 96-2293T
Agency. )
)
DECISION
On July 15, 1997 (�first appeal�) and on October 2, 1997 (�second
appeal�), Wendy L. Boston (hereinafter referred to as the appellant)
filed timely appeals with the Equal Employment Opportunity Commission
(Commission) from the respective final agency decisions (FAD's) of
the Department of Treasury, (hereinafter referred to as the agency),
concerning her allegations that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
These appeals are accepted by the Commission in accordance with EEOC
Order No. 960.001 and will be considered together, as they involve the
same issues and are inextricably interwined.
In her complaint that is the subject of the first appeal (complaint #1),
appellant alleged that the agency discriminated against her on the bases
of race (Black) and reprisal (prior EEO activity), when the agency removed
appellant's telephone from her desk and denied her phone privileges.
In her complaint that is the subject of the second appeal (complaint
#2), appellant alleged that the agency subjected her to hostile work
environment harassment on the bases of race (Black), sex (female) and
reprisal (prior EEO activity) because: (1) from May 1995 through July 9,
1996, the agency continuously placed her on Absence Without Leave (AWOL),
and specifically placed her on AWOL on June 25, 26 and July 3, 1996; (2)
whenever appellant requested annual or sick leave, the agency telephoned
the various places to verify appellant's appointments, including the
location, arrival and departure times, and duration of appointments,
and (3) on July 9, 1996, the agency documented, and informed appellant
that her work performance during the period from June 24 to July 9,
1996 was unacceptable and did not reflect a proper usage of time.
In FAD #1, the agency dismissed complaint #1 as moot, pursuant to 29
C.F.R. �1614.107(e). The agency found that since the
responsible management officials (RMO's) terminated appellant on February
28, 1997, appellant was not an aggrieved employee. It is from this
decision that appellant now appeals.
After a careful review of the record, the Commission concurs in
the result. However, we find that the agency wrongfully dismissed
complaint #1 on the ground that it is moot. The agency should have
considered whether the complaint states a claim of harassment. See Grier
v. Department of Transportation, EEOC Appeal No. 01972707 (August 11,
1998). The Commission finds that appellant's allegations do not indicate
that she was subjected to remarks or actions that were sufficiently severe
or pervasive to alter the conditions of her employment. Therefore,
she was not subjected to harassment. For the above stated reasons,
the Commission AFFIRMS the agency's dismissal of appellant's complaint
in FAD #1.
With respect to complaint #2, in FAD #2, the agency found that appellant
failed to establish that the agency subjected her to hostile work
environment harassment based upon her race (Black), sex (female) and
reprisal. In FAD #2, the agency found that the RMO's were justified in
charging appellant with AWOL, and documenting that her performance was
unacceptable, because she had been placed under leave restriction due
to excessive absenteeism and misuse of leave. It is from this decision
that appellant also appeals.
Assuming that appellant established a prima facie case with respect to
the individual allegations and on all bases in complaint #2, appellant
failed to establish that the agency's articulated reasons for its
actions were pretextual. The record contains no evidence to support
appellant's allegations of hostile work environment harassment on any
of the bases alleged.
After a careful review of the record in its entirety, including
appellant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, the Commission finds that FAD
#2 set forth the relevant facts and properly analyzed the appropriate
regulations, policies and laws. Therefore, the Commission discerns
no basis to disturb the findings of no discrimination in FAD #2.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM FAD #2.
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. 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 (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:
9/09/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations