Domenica M. Rubino Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services. ________________________________)

Equal Employment Opportunity CommissionJan 27, 1999
01981713 (E.E.O.C. Jan. 27, 1999)

01981713

01-27-1999

Domenica M. Rubino Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services. ________________________________)


Domenica M. Rubino v. Department of Health and Human Services

01981713

January 27, 1999

Domenica M. Rubino )

Appellant, )

) Appeal No. 01981713

v. ) Agency No. NICHD-970059

)

Donna E. Shalala, )

Secretary, )

Department of Health and )

Human Services. )

________________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq. The final agency decision was mailed to appellant

on November 26, 1997. The appeal was postmarked on December 24, 1997.

Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402), and is

accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed issues 2,

4, 5, and 7 of appellant's complaint, as set forth in the final agency

decision, on the grounds that appellant failed to state a claim.

BACKGROUND

Appellant filed a formal complaint alleging that, based on her sex

(female) and reprisal for participating in a protected activity, she

was harassed and subjected to a hostile work environment. Specifically,

appellant alleged that she was discriminated against in violation of

Title VII when:

Her fellowship was not extended beyond June 27, 1997;

She was subjected to an "unremitting campaign of harassment and

differential treatment" which included but was limited to numerous

gender-based remarks such as: "You need to consider other types of jobs

like industry so that you can have a family"; "You should consider an

administrative job so you can have a family"; and "Stop taking care of

Jim, stop your maternal behavior towards him";

She was excluded from participating in a data sharing group of research

scientists;

On March 10, 1997, her second level supervisor accused her of "threatening

a lawsuit," and using a "cheap ploy" and a "political power play" to

get a position she did not deserve;

On May 8, 1997, a management official allegedly asked one of appellant's

colleague why they could not control the appellant, and stated that

appellant had lawyers coming into the manager's office;

She did not receive a special volunteer identification until June 25,

1997; and

Her second level supervisor allegedly stated "I am going to f_ _ _

[appellant]."

In its final decision, the agency accepted allegations 1,3 and 6

but dismissed allegations 2,4,5, and 7 for failure to state a claim.

In support of her appeal, appellant contends that this is not a case where

she is claiming isolated incidents of verbal abuse with no impact on her

employment status. To the contrary, she is claiming that there was an

unremitting campaign to harass her because she is a woman with the purpose

and result of terminating her employment. Appellant further contends

that her complaint did not characterize each of several statements as

stating independent causes of action, but instead characterized them as

part of an overall gender based harassment claim which if taken as true

states a claim for which relief is available.

In response to appellant's appeal, the agency, relying on Cobb v. Rubin,

EEOC Request No. 05970077 (March 14, 1997), contends that the alleged

verbal attacks, disparaging comments, and oral admonishments do not

by themselves state a hostile work environmental claim and instead

must be accompanied by a concrete agency action. The agency, while

characterizing the alleged discriminatory comments as mere utterances,

further contends that taken as a whole the comments were not sufficiently

severe to affect appellant's conditions of employment. Finally, while the

agency contends that allegations 2, 4, 5, and 7 have been dismissed, the

alleged occurrences will be examined as part of the agency's investigation

of the accepted allegations.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that fails to state a

claim under �1614.103(a).

An agency shall accept a complaint from any aggrieved employee

or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R.� 1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (Apr. 21, 1994).

Harassment allegations should be accepted where appellant has made

factual allegations which, when considered together and taken as true,

are sufficient to state a claim of disparate treatment or hostile

work environment. Riden v. Department of the Treasury, EEOC Request

No. 05970314 (October 2, 1998). The merits of the allegations should not

be considered, and the complaint should not be dismissed for failure to

state a claim unless it appears beyond a doubt that appellant can prove no

set of facts in support of the claim which would entitle her to relief.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997).

While the Commission has held that "a few isolated incidents of alleged

harassment usually are not sufficient to state a harassment claim,"

[Cobb, at p.5], in this case, appellant has alleged with specificity that

the harassment was ongoing which resulted in concrete adverse employment

actions including but not limited to not having her fellowship extended.

CONCLUSION

Based on a review of the record in this case, it is the decision of the

Commission to REVERSE the agency's dismissal of appellant's allegations

2, 4, 5, and 7. Allegations 2, 4, 5, and 7 are REMANDED to the agency

for further processing.

ORDER (E1092)

The agency is ORDERED to consolidate and process appellant's

allegations in accordance with 29 C.F.R. �1614.606 and �1614.108.

The agency shall acknowledge to the appellant that it has received the

remanded allegation within thirty (30) calendar days of the date the

agency receives this decision. The agency shall issue to appellant a

copy of the investigative file and also shall notify appellant of the

appropriate rights within one hundred fifty (150) calendar days of the

date the agency receives this decision, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the correspondence 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 reonsider 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 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 (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:

JAN 27, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations