Wendy L. Boston, Appellant, Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01975721 (E.E.O.C. Sep. 9, 1999)

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