Cheryl DiFruscio, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01982006 (E.E.O.C. Sep. 13, 2000)

01982006

09-13-2000

Cheryl DiFruscio, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Cheryl DiFruscio v. Social Security Administration

01982006

September 13, 2000

.

Cheryl DiFruscio,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01982006

Agency No. 001596

Hearing No. 160-96-8570X

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and reprisal (prior EEO activity) in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> For the reasons stated herein, the agency's FAD is affirmed.

During the period in question, complainant was employed as a Claims

Representative, GS-11, in a Massachusetts facility of the agency.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint alleging that the

agency discriminated against her based on the above-stated bases when

her second line supervisor, an Assistant District Manager (ADM) for the

agency, harassed her and treated her different than those outside of

her protected classes. Specifically, complainant alleged that the ADM

(1) publicly admonished her for taking her break late when in fact she

was not late; (2) failed to inform her of the availability of additional

overtime; (3) accused her of inappropriately signing up for credit hours;

(4) assigned her a claimant interview five minutes before her meeting with

an EEO Counselor<2>; and (5) opened her mail from an EEO Counselor which

was inside of an agency envelope stating �Do Not Open in Mail Room� in

big, red letters. Complainant added that her first line supervisor, an

agency Operations Supervisor (OS), accused her of discussing confidential

claimant information with security officers assigned to the field office

and instructed her to no longer communicate with security officers on

duty.

Complainant stated that the agency's actions were discriminatory

because the ADM treated males in the office different than females and

he was hostile to her ever since she filed a class complaint based on sex

against him in Spring 1993. She indicated further that the OS typically

was following the instructions of the ADM when she reprimanded her.

The ADM indicated that on the occasions that he did reprimand complainant

or suggest that she be reprimanded; the reprimand was justified<3>, done

in an amicable manner, and motivated by non-discriminatory reasons only.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination. The AJ concluded that complainant failed to

establish a prima facie case of discrimination based on sex or reprisal.

The agency issued a FAD adopting the AJ's finding of no unlawful

employment discrimination based on sex or reprisal. This appeal

followed.

Where a complainant does not suffer a present harm or loss regarding

a term, condition, or privilege of employment, she may still state

a claim where the complaint claims, taken together and treated as

true, are sufficient to state a hostile or abusive environment claim.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). A hostile or abusive work environment claim requires that a

complainant allege facts which, if proven true, may indicate that the

complainant was subjected to harassment that was severe or pervasive

enough to alter the conditions of her employment. Id. In making such

a determination, the Commission has considered �whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive.� Id.

The Commission has repeatedly found that unless the conduct is very

severe, a group of isolated incidents will not be regarded as creating

a hostile work environment. See Phillips v. Dep't of Veterans Affairs,

EEOC Request No. 05960030 (July 12, 1996). A supervisor's remarks on

several occasions unaccompanied by any concrete action are usually not

sufficient to state a claim of harassment. Backo v. United States Postal

Service, EEOC Request No. 05960227 (June 10, 1996).

In the instant case, after considering all of the circumstances

which includes the frequency of the alleged discriminatory conduct,

its severity, whether it was physically threatening or humiliating as

opposed to a mere offensive utterance, and whether it interfered with

the complainant's work performance;<4> the Commission finds that the

complainant challenged six isolated incidents that even when viewed in a

group do not state a claim of harassment. Accordingly, the complainant

failed to establish discriminatory harassment by the agency.

Further, to the extent complainant alleged disparate treatment,

she did not establish a prima facie case of discrimination based on

sex or reprisal. For her claim of disparate treatment based on sex,

complainant failed to provide comparative evidence which would show that

she was treated different than those outside of her protected class

or objective evidence to establish an inference of discrimination.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); O'Connor

v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996). For her claim

of disparate treatment based on reprisal, complainant failed to show a

causal connection between any of the alleged discriminatory incidents

and her prior EEO activity.<5> Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F.Supp. 318, 324 (D.Mass), affirmed,

545 F.2d 222 (1st Cir. 1976); Simens v. Department of Justice, EEOC

Request No. 05950113 (March 28, 1996) (citations omitted).

Accordingly, the complainant has failed to prove that the agency harassed

her or discriminated against her based on sex or reprisal. It is the

decision of the Commission to AFFIRM the agency's final decision in this

matter finding no harassment and no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

September 13, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Issue (4) was not listed as an issue in the agency's letter of complaint

acceptance; however, issue (4) is discussed throughout the remainder of

the record.

3The ADM admitted that in reference to issue (1) of complainant's claim,

his reprimand of complainant was erroneous because he was misinformed

about break times. His supervisor, the District Manager, later issued

a written apology indicating that management had incorrect information

about break times.

4See Carroll v. Department of the Army, EEOC Request No. 05970939 (April

4, 2000).

5Complainant's prior EEO activity was a class complaint based on

sex naming her ADM as the responsible management official. The class

complaint was filed in either April or May 1993 but complainant withdrew

the complaint, as the last remaining class member, on February 28, 1994.

In addition, the ADM's actions appear consistent with office practices

and agency policies.