0120103742
01-27-2011
Cynthia G. Bates, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Cynthia G. Bates,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120103742
Agency No. 09R7PBSCB7
DECISION
On September 20, 2010, Complainant filed an appeal from the Agency's August 6, 2010 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Real Property Acquisition and Relocation Specialist, GS-1101-9 at the Agency's Portfolio Management Division, Public Buildings Service facility in Fort Worth, Texas.
On November 9, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of disability (Asperger's Syndrome, ADHD, bi-polar disorder) and in reprisal for prior protected activity when:
Up until September 29, 2009, the Agency has continually harassed Complainant since her transfer into her current position two years earlier.
In a narrative attached to her formal complaint, Complainant stated that her supervisor (S1) did not provide her with adequate work assignments; required her to engage in the Agency's Employee Assistance Program (EAP) under threat of termination; and engaged in defamation and slander of her reputation by indicating that Complainant was a threat to herself or others. Complainant also claimed that the Agency improperly reclassified her position from a GS-11/12 to a GS-9.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination. Specifically, the Agency determined that Complainant failed to establish a prima facie claim of discrimination based on her disability or prior EEO activity
CONTENTIONS ON APPEAL
On appeal, Complainant restates the matters addressed in her formal complaint and during the investigation of her complaint. Complainant disagrees with several statements in the Agency's final decision. Complainant argues that the Agency distorted the accepted issue, thereby "diverting the primary focus of [her] retaliation complaint." As such, the Agency "does not properly identify the issues presented for examination, nor does it accurately reflect the intent of the [Complainant]." .
Further, regarding the Agency's finding that she failed to establish a prima facie claim of disability discrimination, Complainant argues, "Irrelevant. No claims of discrimination based on disability were brought against [Agency]." Complainant states that "[t]he determination on non-membership of a protected group based on my disability which was relied upon in making a determination to my determent [sic] in this case was inapplicable to the charge of retaliation."
Complainant also expresses dissatisfaction with the completeness of the record, believing that the investigator should have followed up on several leads. Finally, in an attempt to establish the Agency's pattern of discriminating against her, Complainant attaches a copy of her previous formal complaint, filed and withdrawn in 2007.
In response, the Agency restates and elaborates upon the reasons provided in its final decision. The Agency also notes that Complainant could have requested a hearing if she was dissatisfied with the record; and that her failure to request a hearing does not make the Agency's decision incorrect. Moreover, the Agency argues that we should not consider the evidence attached to Complainant's brief on appeal because such evidence was available during the investigation of Complainant's claims.
ANALYSIS AND FINDINGS
As a preliminary matter, because Complainant does not appeal the Agency's findings with respect to discrimination on the basis of disability, we decline to address this basis any further.
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, at Chapter 9, � VI.A. (November 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").
The Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to 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 her 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. See Henson v. City of Dundee, 682 F.2d 897 (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 at 6.
Complainant demonstrates she belongs to a statutorily protected class because of her prior EEO activity. However, Complainant is unable to demonstrate that the Agency subjected her to harassment based on reprisal. The record shows that Complainant's superiors attempted to provide Complainant with adequate work assignments. Moreover, the record contains evidence that Complainant's coworkers expressed alarm at Complainant's behavior. Based on those concerns and upon advice from Human Resources, S1 suggested Complainant engage the Employee Assistance Program. Moreover, S1 denied Complainant's allegation that her position was improperly classified from GS-11 to GS-9. S1 explained that Complainant agreed to the transfer into her current position as a GS-9.
Without more than Complainant's assertions, we cannot find that her allegations rise to the level of discriminatory harassment. During the investigation of her complaint, Complainant often insisted that she is able to provide documentation proving her case, but fails to do so. Accordingly, our consideration of Complainant's allegations is limited to the evidentiary record, which does not support an inference of reprisal discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we 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
January 27, 2011
__________________
Date
2
0120103742
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103742