01a45038
11-24-2004
Diane A. Frascella, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Diane A. Frascella v. Department of the Navy
01A45038
November 24, 2004
.
Diane A. Frascella,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A45038
Agency No. DON-04-00187-054
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of sex (female) when her
supervisor used fear and intimidation to supervise her. Complainant
provided the following examples in support of her claim:
1) on March 30, 2004, complainant was told that her supervisor accused
her of ransacking his office while he was on leave;
2) on March 15, 2004, and several other occasions complainant believes
her supervisor has singled her out by questioning the calls on her
government phone bill;
3) on March 12, 2004, complainant's supervisor said the he would
discipline her for disobeying a direct order when she asked for help;
4) on March 5, 2004, when complainant was told that a MRI for safety
shoes could be faxed to Norfolk for approval, complainant's supervisor
said that was not how it was to be done;
5) on March 1, 2004, after returning to work from light duty, complainant
was expected to catch up on all of her previous assignments from the
period before she was out, unlike a co-worker who receives assistance
with assignments when ill;
6) on September 23, 2003, complainant's supervisor denied her the
assistance of a carpenter to cut plywood;
7) on September 21 2003, complainant's supervisor threatened her, saying
that he would have to �deal with her;�
8) on September 15, 2003, complainant's supervisor counseled her and
made belittling statements to her about her troubleshooting and trade
theory skills, and told her that she spent too much time in the material
area; and
9) on June 30, 2003, complainant's supervisor called her doctor inquiring
about her ability to work overtime.
Complainant, an electrician, WG-2805-10, at the agency's Public Works
Center in Norfolk, VA, contacted the agency's EEO office on March 12,
2004 to initiate the complaint process. She subsequently filed a formal
complaint of discrimination on April 13, 2004. The agency, in its Final
Agency Decision issued on June 21, 2004, dismissed the complaint for
failure to state a claim. Complainant appealed the decision on July
21, 2004.
On appeal, complainant argued that her supervisor makes her feel as if she
should fear him because he continuously targets her. She additionally
alleged that he follows her in his truck from job to job, which he does
not do to the men on this crew. She also alleged that he would not
purchase her a new work ladder, but did so for another employee.<1>
The agency argued that complainant's allegations are not sufficiently
severe or pervasive to state a claim of harassment under Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. The agency characterized her allegations as isolated incidents
that do not constitute a hostile work environment.
�[H]arassment is actionable if it is sufficiently sever or pervasive
to alter the conditions of the complainant's employment.� Cobb
v. Department of the Treasury, EEOC Appeal No. 01960215 (March 13, 1997).
The harassment must create an objectively hostile work environment in
which a reasonable person would find it hostile or abusive, and the
complainant must subjectively perceive it as such. Id. To determine
whether a work environment is objectively hostile or abusive we must
consider the totality of the circumstances, including: the frequency
of the conduct, its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee's work performance. Id. A group of isolated
incidents will not be regarded as creating a discriminatory hostile
work environment. Id.
We find that complainant successfully stated a claim of discriminatory
harassment. She alleged a series of related incidents with her supervisor
which she believes occurred because she is a woman and perceives to be
hostile and abusive. Her allegations of false accusations, intimidation,
belittling statements, and excessive scrutiny are, furthermore,
sufficiently severe and pervasive to be objectively hostile. Brast
v. USPS, EEOC Appeal No.01A33257 (March 12, 2004) (citing Cobb, supra).
The agency argues that complainant merely alleged a group of isolated
personnel actions by complainant's supervisor. The agency cites Wolf
v. USPS, EEOC Appeal No. 01961559 (July 27, 1998), in which we found
no harassment because the complainant's allegations only concerned
changes in job responsibilities and workplace procedures. Complainant
here alleges more than changes in job responsibilities and workplace
procedures. She alleges actions taken by her supervisor against her that
were not taken against others and that contradicted normal procedure.
Complainant's allegations, therefore, constitute more than isolated acts
and state a claim for discriminatory harassment.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
_November 24, 2004_________________
Date
1We note that these alleged examples
of harassment are like and related in kind to those in complainant's
formal complaint. She may wish to amend her complaint to include these
allegations on remand.