Karen S. Maurer, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 18, 2003
01A30545_r (E.E.O.C. Mar. 18, 2003)

01A30545_r

03-18-2003

Karen S. Maurer, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Karen S. Maurer v. Department of the Treasury

01A30545

March 18, 2003

.

Karen S. Maurer,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A30545

Agency No. 02-4188

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated September 24, 2002, dismissing her complaint of

unlawful employment discrimination in violation of the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In a formal EEO complaint dated May 15, 2002, complainant alleged that

she was discriminated against on the basis of age. Complainant claimed

that she was subjected to a hostile work environment when a younger

female employee was routinely awarded preferential treatment by the Port

Director. After the agency requested further information, complainant

cited the following sixteen specific incidents in support of her claim:

(1) Complainant's husband applied and was best qualified for a GS-4

position in her office, but the vacancy announcement was canceled and

a younger female was hired for the re-announced and reclassified position;

The Port Director makes frequent daily visits to their office to

converse with the younger employee and/or summons her to his office

for prolonged periods;

Complainant has observed the Port Director and Assistant Port Director

put their hands on the younger employee's head and shoulder;

The Port Director has asked the younger employee to lunch on numerous

occasions, while complainant has received only one invitation, which

she refused;

The younger employee routinely reports to work approximately 5 to 20

minutes late, then applies her make-up for another 20 to 30 minutes;

The Port Director gave the younger employee a computer to use at home;

Complainant was not allowed to accept a gift box of chocolates given to

her by a former employee's mother for assistance that she had provided,

but that �it was just fine� for her to put the chocolates in the

administrative supervisors' office for them to share;

The Port Director placed a pecan pie on the younger employee's desk,

and no gift was provided to other employees;

The younger employee reports her absences to the administrative

supervisor or to the Port Director rather than the on-duty supervisor;

On February 4, 2002, the Port Director asked complainant when she

planned to retire;

On February 4, 2002, the Port Director discussed respective job

responsibilities with complainant and the younger employee, then told

complainant he wanted the younger employee to learn complainant's job

so she could cover it when complainant retires;

On February 4, 2002, the Port Director lectured the younger employee

and complainant on �getting along;�

When the younger employee leaves her desk, she transfers all her incoming

calls to complainant, which, at times, impedes complainant's ability

to use the restroom and delays her in accomplishing her job;

The younger employee has been allowed to take long lunch breaks, and

complainant has not been so allowed;

The younger employee has been allowed to conduct long personal phone

calls while on duty, and complainant has not been so allowed;

The younger employee has been allowed to contact various employees

daily to take lunch orders, while complainant has been instructed to

concentrate solely on her job.

On June 14, 2002, the agency dismissed complainant's hostile work

environment claim. Moreover, after assessing each claim individually,

the agency dismissed all but six of complainant's sixteen individual

claims for failure to state a claim. Thereafter, the agency issued a

final decision on September 24, 2002, that is the subject of the instant

appeal. Therein, the agency reiterated its earlier dismissals and then

also dismissed the six remaining claims for failure to state a claim.

Upon review, the Commission finds that complainant's hostile work

environment claim was improperly dismissed pursuant to 29 C.F.R. �

1614.107(a)(1). A fair reading of complainant's complaint reflects

that she claims that she was subjected to a hostile work environment

based on her age when, among other matters, she was asked about her

retirement plans and was told to train a younger employee for her job,

and preferential treatment accorded to a younger employee affected her

ability to accomplish her work. We therefore find that, when viewed as

a whole in the light most favorable to complainant, complainant's claims

(2) through (16) are sufficient to state a hostile work environment claim.

However, regarding claim (1), the Commission determines that this claim

was properly dismissed for failure to state a claim pursuant to 29

C.F.R. � 1614.107(a)(1), as complainant was not personally aggrieved by

the incident described.

Accordingly, the agency's decision to dismiss claim (1) is AFFIRMED.

The agency's decision dismissing complainant's hostile work environment

claim, as encompassed by claims (2) through (16) above, is REVERSED,

and the claim, as defined herein, is 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 claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim 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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

March 18, 2003

__________________

Date