01a52660
08-22-2005
Yi Young Whitted, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Yi Young Whitted v. Department of Veterans Affairs
01A52660
August 22, 2005
.
Yi Young Whitted,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52660
Agency No. 2004-0565-2003-103062
Hearing No. 140-2004-00206X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
The record reveals that complainant, a Supply Technician for Supply
Processing and Distribution under the Business Office at the agency's
Medical Center in Fayetteville, North Carolina, filed a formal EEO
complaint on July 2, 2003, alleging that the agency harassed her based on
race (Korean) and sex (female) when on May 21, 2003, complainant learned
from her supervisor that �[a former co-worker, (CW)] is coming back to
work because he dropped a dime<1> on [supervisor] and [complainant],
and that [complainant] was sleeping around with [CW].� Prior to the
instant complaint, complainant had worked as a laundry worker at the
agency's Laundry Plant. Complainant filed EEO complaints in October
1998 and May 2000 that involved CW. The agency and complainant entered
into an August 16, 2001, settlement agreement, resolving these EEO
cases, Agency Nos.2004-1784 and 2004-2143. As part of this settlement
agreement, the agency reassigned complainant from the Laundry Plant to
her Medical Supply Technician position under the agency's Business Office.
During this time, the agency terminated CW from his Laundry Plant position
but later reinstated him pursuant to a Merit Systems Protection Board
(MSPB) decision. On May 21, 2003, complainant's supervisor informed
her that he had a conversation with an agency employee who learned from
another agency employee that CW used complainant's name and the statement
that he was sleeping with her to get out of trouble and return to work.
On May 26, 2003, complainant wrote a letter to the Director of the
Medical Center where she believed she was being discriminated against
based on race and sex because of the information that her supervisor
passed along to her. She described three incidents including the claim
identified in the instant complaint along with the allegations that
CW had physically abused his wife and children at home and that an
agency employee had some pictures of complainant and her supervisor.
Complainant explained that she previously filed complaints concerning
harassment by other co-workers and that the agency took no remedial
action. Further, complainant argued that this statement along with past
incidents reflected a pattern of discriminatory harassment where the
agency failed to respond to complainant's concerns, and as a result,
the agency has created a hostile work environment that holds Korean
women as having a reputation of nothing more than prostitutes.
On June 10, 2003, the Director responded to complainant's claims by
appointing an Administrative Board of Investigation (ABI) that found her
claims to be unsubstantiated. However, in September 2003, the Director
recommended the following corrective actions to address complainant's
concerns: (1) education for Laundry Section on diversity, inappropriate
comments, gossip, ethics, etc.; (2) administrative action against
complainant's supervisor for providing complainant with information
regarding confidential personnel issues; (3) administrative action against
the agency employee for his comments regarding complainant's supervisor
and complainant; and (4) administrative action against complainant for
requesting, receiving, and possessing confidential personnel information
on CW and another co-worker. The record also reflects that complainant
filed additional complainants against co-workers in July 2003 and
February 2004. The ABI investigated these claims but also found them
to be unsubstantiated.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On November 9, 2004, the agency moved for a decision without
a hearing. The AJ issued a decision without a hearing on December 30,
2004, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of harassment based on sex and race discrimination. Specifically,
the AJ found that complainant failed to show that any gossip circulated
about her sex life created a hostile work environment. The AJ also found
no basis for imputing liability to the agency because the agency took
action to investigate, and based on these findings, the agency recommended
disciplinary charges against the employee for spreading the rumor about
complainant. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in finding that the
instant case involved an isolated incident, namely the statement spreading
the rumor about complaint, and did not discuss complainant's additional
claims of harassment in July 2003 and February 2004. Complainant states
that the gravamen of her claims is that she was the subject of rumor
monger, sexual innuendos, distortions and outright lies that have resulted
in her going on medication and being in a depressed state. Complainant
argues that the agency's actions have not been remedial in light of the
harm done, the repeated nature of the offense, and the participation of
complainant's supervisor in the festering and spreading of the problem.
She also states that contrary to the AJ's findings, her past and present
allegations of harassment warrant further investigation because they are
part of a pattern of discriminatory harassment. Further, complainant
asserts that the record is incomplete and that the AJ improperly granted
the agency's motion for summary judgment because she believes that there
are still genuine issues of material fact in dispute. The agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
As an initial matter, the Commission's 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. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is �genuine� if
the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F. 2d 103, 105 (1st Cir. 1988).
A fact is �material� if it has the potential to affect the outcome
of the case. If a case can only be resolved by weighing conflicting
evidence, issuing a decision without a hearing is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Harassment Based on Sex or Race- Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). A
single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all of the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee's work performance. Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994) at 3, 6. Harassment is actionable only if the harassment to which
the complainant has been subjected was sufficiently severe or pervasive to
alter the conditions of the complainant's employment. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In order to establish a prima facie case of harassment based on sex or
race, complainant must show the existence of five elements: (1) she
is a member of a statutorily protected class; (2) she was subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on the statutorily protected class; (4) the harassment had the
effect of unreasonably interfering with the work environment; and (5)
there is a basis for imputing liability to the employer. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982);
Humphrey v. Untied States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11.
In the instant case, it is undisputed that the complainant belonged to a
statutorily protected class as a Korean woman, was subjected to unwelcome
conduct that involved the protected class, and that this conduct was
based on her protected class. However, complainant fails to show that
the statement spreading the rumor about complainant had the effect of
unreasonably interfering with her work environment. Although complainant
asserts on appeal that she has been the subject of rumor monger, sexual
innuendos, distortions and outright lies that have resulted in her going
on medication and being in a depressed state, she fails to support her
allegations with concrete evidence other than by the rumors she hears and
the perceptions she holds. Specifically, in complainant's deposition,
she stated that she believes what is told to her by other people because
that is the history of harassment. She also described how her co-workers
do not have to say word, but that she can hear by their attitude and by
how they speak to her. We find that complainant offers no persuasive
evidence that would support these rumors as true nor does she offer
any evidence to support her own perceptions. See Williams v. Dept. of
the Treasury, EEOC Appeal No. 01A00382 (April 12, 2000)(stating that
allegations of co-workers spreading rumors of a complaint's sexual
conduct did not constitute a hostile work environment nor did it state
a claim as the complainant failed to show a harm with respect to the
terms, conditions or privileges of her employment); James v. Dept. of
HHS, EEOC Request No. 05940327 (Sept. 20, 1994)(stating that rumors of
a complainant's sexual conduct with no concrete action taken against
the complainant does not state a claim). Further, this statement is
insufficiently severe and pervasive to render a hostile work environment,
and accordingly, we will not address whether liability is imputed to
the agency in light of complainant's failure to satisfy this element.
With respect to complainant's argument made on appeal that the statement
spreading the rumor about complainant is not an isolated incident but
rather part of a continuing pattern of harassment, the Supreme Court
has held that a complainant alleging a hostile work environment will not
be time barred if all acts constituting the claim are part of the same
unlawful practice and at least one act falls within the filing period. See
National Railroad Passenger Corp. v Morgan, 122 S. Ct. 2061 (June 10,
2002). The Court further held, however, that �discrete discriminatory
acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.� Id. Finally, the Court held that
such untimely discrete acts may be used as background evidence in support
of a timely claim. Id. We cannot find that the AJ erred because this
argument is raised on appeal and was not before the AJ at the time she
rendered her decision. Even still, we find that the accepted claim,
involving the statement spreading the rumor about complainant, is an
isolated incident. We conclude that the additional claims and incidents
of harassment described in the record are too vague to establish whether
they are part of a continuing violation.
CONCLUSION
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the AJ's decision finding that complainant failed to
establish that the agency harassed complainant based on race or sex
is AFFIRMED.
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 (S0900)
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. 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
August 22, 2005
__________________
Date
1 We note that �dropped a dime� means to �rat out� someone or to tell
on someone.