01a05776
01-04-2001
Ora Allen, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Ora Allen v. Department of Veterans Affairs
01A05776
January 4, 2001
.
Ora Allen,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05776
Agency No. 99-3686
Hearing No. 330-A0-8078X
DECISION
Ora Allen (complainant) timely initiated an appeal from the agency's
final order concerning her equal employment opportunity (EEO) complaint
of unlawful discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
she was discriminated against on the basis of sex when she was subjected
to harassment.<2> In support of this claim, complainant described the
following incidents:
(1) on June 7, 1999, her supervisor (S1) gave her a monthly performance
review, which reflected that she was not performing to her standards
and asked her to sign the review;
(2) her third-line supervisor (S3) continually talks to her in a
negative tone, causing stress and anxiety.
BACKGROUND
The record reveals that complainant, a Loan Officer at the agency's
Regional Office in Houston, Texas, filed a formal EEO complaint with
the agency on July 2, 1999, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.<3>
The AJ concluded that complainant failed to establish a prima facie case
of sex discrimination. Specifically, the AJ found that complainant
failed to show that the agency took any action which significantly
changed a term or condition of complainant's employment. The AJ also
held that the events described by complainant were not sufficiently
severe or pervasive to render them harassment. The AJ concluded that
because complainant did not allege actions that rise to level of the
types of actions which give individuals standing under discrimination
laws, she failed to establish a prima facie case of discrimination.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that she established a prima facie
case of sex discrimination. She notes that the evidence confirms that
S1 consistently made negative comments about her performance, often
making her cry. She argues that similarly situated male employees were
not treated in this manner. She also notes that S1 complained of her
performance even when she was doing well. Complainant then argues that
S3 singled her out and told her not to eat at her desk even though other
employees were allowed to do so. Complainant notes that this treatment
created a hostile work environment. In conclusion, complainant argues
that the agency's claim that complainant's treatment was related to her
performance is false and that this, combined with her prima facie case,
establishes that she was subjected to sex discrimination. In support of
this argument, complainant cites to a recent Supreme Court case in which
the Court ruled that a plaintiff's prima facie case of discrimination,
combined with sufficient evidence to allow a reasonable fact finder to
reject the employer's non-discriminatory explanation, may be adequate to
sustain a finding of intentional discrimination. See Reeves v. Sanderson
Plumbing Products, Inc., 120 S. Ct. 2097 (2000).
In response, the agency notes that complainant did not establish a prima
facie case, as she did not allege actions which rise to the level of
actions which give standing under discrimination laws. The agency argues
that complainant was having performance problems and that comments made
by S3 about keeping food in a working desk area would have been made to
any employee who behaved in this manner.
ANALYSIS AND FINDINGS
Commission regulations allow an AJ to issue a decision without a hearing
when he or she finds that there is no genuine issue of material fact.
This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when �material facts are not in genuine dispute.� 20
C.F.R. � 1614.109(g). Only a dispute over facts that are truly material
to the outcome of the case should preclude summary judgment. See Anderson
v. Liberty Lobby, Inc. 277 U.S. 242, 248 (1986) (only disputes over
facts that might affect the outcome of the suit under the governing law,
and not irrelevant or unnecessary disputes, will preclude the entry of
summary judgment). For example, when a complainant is unable to set
forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element
of the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-323 (1986); EEO-MD-110, at 7-15. The Commission will
apply a de novo standard of review when it reviews an AJ's decision to
issue a decision without a hearing pursuant to 29 C.F.R. � 1614.109(g).
See EEO-MD-110, at 9-16.
After a careful review of the record, we find that the AJ's decision
to issue a finding of no discrimination without a hearing was proper.
The AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. As an initial matter,
we note that at certain points complainant appears to be raising a
disparate treatment claim and, at others, a claim of harassment.
Assuming she intended to raise a disparate treatment claim, we
note that complainant failed to establish a prima facie case of sex
discrimination in that she failed to establish that the agency treated
her differently than any other employee. The record reveals that all
employees on complainant's team were given monthly reviews and that
anyone who experienced performance problems was told of these problems.
The record also establishes that although complainant's performance
improved in May 1999, she had performance problems throughout 1999.
Complainant does not dispute these facts.
Furthermore, complainant failed to establish that she was harassed in that
the incidents she described were not sufficiently severe or pervasive
to alter her working conditions. Discussions about work performance
between a supervisor and an employee are a common workplace occurrence
and unless it is reasonably established that the actions were somehow
abusive or offensive, and were taken in order to harass appellant on
the basis of any of her protected class, such every day events are not
sufficiently severe or pervasive so as to offend the general sensibility
of an individual experiencing such occurrences in the workplace. See Long
v. Veterans Administration, EEOC Appeal No. 01950169 (August 14, 1997).
Similarly, comments made by a supervisor, even if made in a �negative
tone,� that are not accompanied by concrete action do not support
a finding of harassment. 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). Thus, even viewing
the events described by complainant in the light most favorable to her,
they do not establish that she was subjected to harassment.
Lastly, we find that complainant failed to present any evidence
whatsoever that the agency's actions were motivated by a discriminatory
animus toward her sex. Accordingly, we discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final order.
We note, however, that the agency failed to address one of the allegations
raised by complainant in her formal complaint. Complainant alleged that
the agency failed to promote her on a number of occasions and rather
than accepting or dismissing this allegation, the agency made no mention
of it. The Commission has held that an agency's failure to address an
allegation raised in a complaint is tantamount to an improper dismissal
of that allegation. See Kapp v. Department of the Navy, EEOC Request
No. 05940662 (January 23, 1995). Therefore, the agency's dismissal
by omission is hereby VACATED and the promotion issue is REMANDED 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 order 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
January 4, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 In her decision, the administrative judge (AJ) characterized the
complaint as follows: �Was the complainant discriminated against because
of her sex in the terms and conditions of her employment?� However, the
Counselor's Report, notice of accepted issues and report of investigation
reveal that complainant stated her claim in terms of harassment and
raised the two incidents noted above. Despite phrasing the complaint
in different terms, the AJ addressed the incidents cited by complainant
in an appropriate manner.
3 After the case was assigned to an AJ, complainant attempted to amend
the subject complaint to include a claim that she was subjected to race
discrimination and retaliation when she was denied a voluntary separation
incentive and a buyout on December 19, 1999. Administrative Judges
have discretion to allow complainants to amend complaints to include
issues that are like or related to those raised in a pending complaint.
See 29 C.F.R. � 1614.106(d); Equal Employment Opportunity Commission
Management Directive for 29 C.F.R. Part 1614 (as revised November 9,
1999), at 5-9 (EEO-MD-110). In the case at hand, the AJ decided not to
allow the amendment, noting that the agency had already issued a FAD on
the voluntary incentive/buyout issue. The AJ informed complainant that
the FAD provided the appropriate appeal rights and advised complainant
to appeal to the Office of Federal Operations if she disagreed with
the agency's decision. A review of Commission records reveals that
complainant filed an appeal on this issue, which is currently pending
review. See Allen v. Department of Veterans Affairs, EEOC Appeal
No. 01A04543.