05a50422
05-02-2005
Lisa M. Sarluca, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Lisa M. Sarluca v. Department of Commerce
05A50422
May 2, 2005
.
Lisa M. Sarluca,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Request No. 05A50422
Appeal No. 01A45366
Agency No. 00-63-00273
Hearing No. 160-2001-08600X
DENIAL
Lisa M. Sarluca (complainant) timely requested reconsideration of the
decision in Lisa M. Sarluca v. Department of Commerce, EEOC Appeal
No. 01A45366 (December 9, 2004). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. Sec. 1614.405(b).
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. Sec. 1614.405(b), and it is the decision of the Commission to deny
the request. Complainant alleged that she was discriminated against
on the bases of race (Caucasian) and reprisal for prior EEO activity
when: (1) in December 1999, a co-worker made alleged racist remarks;
and (2) on February 29, 2000, she was terminated. The complaint was
investigated and a hearing was held before an EEOC Administrative Judge
(AJ). The AJ concluded that complainant had failed to prove that she
was discriminated against. The agency's final order implemented the
AJ's decision. From that order complainant appealed to the Commission.
The previous decision affirmed the finding of no discrimination.
Harassment - Racist Remarks By Co-worker
Complainant contends that, outside of her presence, one of her co-workers
referred to complainant as a �Blue Eye Bandit.� This was apparently
was meant to suggest that complainant was a member of the Nazi Party.
The same co-worker also reportedly said �White people never enslave their
own.� Complainant argues that these utterances constituted harassment
in that they created a hostile work environment. In determining whether
a harassment complaint states a claim in cases where a complainant had
not alleged disparate treatment regarding a specific term, condition,
or privilege of employment, the Commission has repeatedly examined
whether a complainant's harassment claims, when considered together and
assumed to be true, were sufficient to state a hostile or abusive work
environment claim. See Estate of Routson v. National Aeronautics and
Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995). Here, assuming
the remarks were made, they were not sufficiently severe or repeated
to establish a hostile work environment. Complaint has not made out a
claim of harassment.
Termination
Complainant alleged that, in retaliation for prior protected EEO activity,
her employment was terminated prematurely, ten days before her �temporary
term� otherwise would have expired. In case such as this where there is
no direct evidence of discrimination, the allocation of burdens and order
of presentation of proof in a Title VII case alleging discrimination is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973); see, Hochstadt v. Worcestor Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
First, complainant must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802. Next, the agency must articulate a legitimate, nondiscriminatory
reason(s) for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,
then the complainant must prove, by a preponderance of the evidence,
that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.
Here, the prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
The agency introduced affidavit testimony that complainant was removed
prematurely because of unexcused lateness and absences from work.
Complainant disputed this but the AJ credited the agency's evidence.
Pursuant to 29 C.F.R. Sec. 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence in
the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). We are satisfied that the
AJ's factual findings on the pivotal point are supported by substantial
evidence and were properly affirmed.
For the foregoing reasons, the decision in EEOC Appeal No. 01A45366
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
May 2, 2005
__________________
Date