01A14241
12-30-2002
Blanche C. Lee, Complainant, v. Department of Commerce, (Bureau of Census), Agency.
Blanche C. Lee v. Department of Commerce
01A14241
December 30, 2002
.
Blanche C. Lee,
Complainant,
v.
Department of Commerce,
(Bureau of Census),
Agency.
Appeal No. 01A14241
Agency No. 00-63-01655D
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of 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 decision.
The record reveals that during the relevant time, complainant was
employed as a Field Operations Supervisor at the agency's Forestville,
Maryland, Local Census Office. Complainant sought EEO counseling and
subsequently filed a formal complaint on June 3, 2000, alleging that she
was discriminated against on the bases of her sex and reprisal for prior
EEO activity when she was sexually harassed by the Local Census Office
Manager (LCOM) and subsequently terminated in retaliation for reporting
the harassment to management.
The record reveals that the LCOM (male) was complainant's second-line
supervisor. Complainant's third-line supervisor was the Area Manager
(AM) (female). Complainant's allegations of sexual harassment stem
from the following incidents: On April 10, 2000, the LCOM placed his
arms around her shoulders and neck and whispered that complainant was
rude to the mother of another employee whom he called �little girl�;
on April 17, 2000, at a staff meeting, the LCOM jumped cross the table
to sit next to her and caressed her arm and hand three separate times
during the meeting; and on April 18, 2000, the LCOM tried to touch her
again and said �look into my eyes, Blanche,� while speaking to her in the
parking lot. Complainant also alleges that she was subjected to other
forms of harassment where the LCOM threatened her with insubordination
on April 28, 2000, for requesting that the LCOM write down his order
for her to terminate all enumerators who had not sent in their direct
deposit payroll forms; accused her of letting a trainee into a class
who was not listed on the proper form; berated her in front of others;
cut her off while she was speaking; and withheld a district map that she
had been requesting. Complainant alleges that additional harassment
occurred at the hands of others including incidents where her direct
supervisor (S1) criticized her for annoying the Selections staff and
a Regional Technician (RT) disrespected her during a meeting when she
threw her hands in complainant's face to �shut her up� and winked and
smiled at S1 after doing so.
On May 3, 2000, complainant was terminated for disruptive behavior
that occurred on April 15, and May 3, 2000, and for inappropriately
providing a personnel form to another employee. Complainant told the
Area Manager that she believed that she was terminated in an attempt
to cover-up the LCOM's sexual harassment. The Area Manager testified
that although she did not observe complainant's work performance, she
was told by the RT and the LCOM that complainant was disruptive during
meetings and was counseled by the LCOM for the disturbances on April 15
and May 3. Complainant claims that she told RT that the LCOM's sexual
actions created a hostile work environment, however, RT denies that this
conversation occurred. Complainant also claims to have told S1 of her
intentions to file a complaint against him and the LCOM for intentionally
holding her work back. Complainant sought EEO counseling on May 10, 2000.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
that the actions of LCOM were severe and pervasive enough to establish a
claim of harassment. Additionally, the FAD found that complainant failed
to establish that the agency's reason for terminating her was pretext
for retaliation because of her reporting LCOM's behavior to management.
On appeal, complainant contends that the agency erred in its finding of
no discrimination. Additionally, complainant raises new allegations of
harassment in her appeal brief. Since these issues were not raised at the
time of the original EEO complaint or amended to the original complaint,
we will not address them on appeal. The agency requests that we affirm
its FAD.
As a preliminary matter, we note that we review the decision on an
appeal from a FAD issued without a hearing de novo. 29 C.F.R. �
1614.405(a). 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
(August 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.
In order to establish a prima facie case of harassment based on sex,
complainant must show membership in a protected group; that the harassment
unreasonably interfered with her work performance and/or was so severe
or pervasive that it altered the conditions of her employment; and would
not have occurred except for her membership in that protected group.
Henderson v. City of Dundee, 682 F.2d 897, 903-04 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March
8, 1994). We find that complainant failed to establish a prima facie
case of sexual harassment based on the actions of the LCOM. While the
alleged conduct was unsavory and unprofessional, we do not find that it
rises to the level of unlawful harassment.
In regard to complainant's other claims of harassment for which she does
not identify a basis, we find this allegation is more accurately described
as a claim of harassment based on reprisal. In order to establish a claim
of harassment in retaliation for engaging in protected EEO activity,
complainant must show that; she engaged in prior EEO activity; she
was subjected to unwelcome conduct related to her prior EEO activity;
the harassment complained of was based on her prior EEO activity; the
harassment had the purpose or effect of unreasonably interfering with her
work performance and/or was so severe or pervasive such that it created
an intimidating, hostile, or offensive work environment; and there is a
basis for imputing liability to the employer. Roberts v. Department of
Transp., EEOC Appeal No. 01970727 (September 15, 2000). We conclude
that complainant failed to establish retaliatory harassment. In so
finding we note that there are discrepancies in the record testimony as
to whether complainant told the RT that she felt that LCOM had sexually
harassed her. After review of the record as a whole, we are not persuaded
that complainant established that she engaged in a protected EEO activity
prior to her termination. Rather, we find that the record indicates that
complainant did not engage in protected activity until she contacted an
EEO counselor on May 10, 2000, five days after her termination. For the
same reasons, we find that complainant did not establish retaliation
under a disparate treatment theory as well.<1>
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 FAD.<2>
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
December 30, 2002
__________________
Date
1 Under the disparate treatment theory, complainant may establish a prima
facie case with a showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subject to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September
25, 2000); Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222(1st Cir. 1976).
2 We note that complainant does not challenge the FAD's finding that
the agency failed to pay complainant for work performed from April 30
and May 1-2, 2000. While the agency did not find this failure was due
to reprisal, it instructed her to resubmit the necessary payroll forms
to receive payment.