0120122803
09-11-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (U.S. Mint), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.
Appeal No. 0120122803
Hearing No. 540-2012-00109X
Agency No. MINT-11-0657-F
DECISION
Complainant timely filed an appeal from the Agency's May 22, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented before the Commission is whether Complainant has proven that she was subjected to harassment based on race (African American), color (black), age (53) and reprisal (prior EEO activity).
BACKGROUND
During the period at issue, Complainant worked as a Metal Forming Machine Operator, WG-3869, at the Agency's Coining Division facility in Denver, Colorado. On September 7, 2011, she filed an EEO complaint alleging what has been identified as the "Issue Presented." The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or, alternatively, a final decision from the Agency based on the record.
Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ. Complainant subsequently withdrew her hearing request, so the AJ assigned to her case returned the matter to the Agency of the issuance of a final agency decision pursuant to 29 C.F.R. � 1614.110(b). On May 22, 2012, the Agency issued its decision finding that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal. Neither party submitted contentions on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Complainant alleges that she was subjected to a hostile work environment based on race, color, age, and reprisal. To establish a successful claim of hostile environment harassment, Complainant must show that:
(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 affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
Complainant alleges that she was subjected to harassment when the following events occurred to her at work when, in January 2011, her supervisor commented that Complainant "won this one" after the Office of Human Resources required that she be allowed to used a time-off award for sick leave she had requested pursuant to the Family Medical Leave; on June 22, 2011, her supervisor questioned where she was supposed to be and told her to "hop on it and hop on it now," on June 22, 2011, her supervisor told her he did not want to talk to her and that he was "getting tired of seeing all you people in that room," on June 23, 2011, her supervisor sarcastically commented, "Oh, [Complainant] came in today...I did not think she was...," on August 4, 2011, her supervisor instituted a new rule regarding where employees were to take breaks; on August 9, 2011, the Coining Supervisor assigned Complainant to perform tasks that are not normally within her job duties; and on various occasions, her supervisor allowed a coworker to refuse various assignments but did not allow her to do that same. 1
Complainant further alleges that these events occurred because of her race, color, age, and prior EEO activity. However, she does not present evidence beyond bare assertions that her protected classes were the reasons these events allegedly occurred. Such assertions without more are insufficient to show that the actions of the supervisor and the Coining supervisor were motivated by her membership in any protected class. Therefore, Complainant has not established the third element required for a successful hostile work environment claim. Accordingly, her harassment claim fails.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 11, 2014
Date
1 Complainant also alleged harassment when, on May 10, 2011, she was issued a notice of warning for failure to properly wear required hearing protection. The Agency dismissed this allegation. Complainant does not expressly challenge the Agency's dismissal on appeal. Therefore, it is not addressed in this decision, as the Commission exercises its discretion to review only those issues specifically raised on appeal. EO MD-110, Chap. 9, at � IV.A ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
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0120122803
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122803