01a45772
11-17-2005
Diane G. Donald, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Diane G. Donald v. Department of the Treasury
01A45772
November 17, 2005
.
Diane G. Donald,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A45772
Agency No. TD 04-4007T
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
BACKGROUND
Complainant was a Bankruptcy Specialist at had the agency's facility
in Las Vegas, Nevada. Prior to her Bankruptcy Specialist position,
complainant had been a tax examining assistant with the agency in San
Jose, California. Complainant moved to the Las Vegas facility in January
2003. She had hoped that the move would create more career advancement
opportunities. However, when she started working at the Las Vegas site,
she found the environment in the unit to be "toxic." She believed that
the co-workers in the Las Vegas unit were trying to get rid of her.
Believing that she was being subjected to discrimination, complainant
contacted the EEO Office. Subsequently, complainant filed a formal
complaint alleging that she was subjected to harassment on the bases
of race (African-American) and color (medium brown). In support of her
claim, she alleged the following events occurred:
On February 20, 2003, a co-worker said, �Stupid black bitch, they need
to give up their 9's;�
On March 27, 2003, there was a scratch on her van in the evening;
On June 2, 2003, co-workers called her a hootchie and a slut;
On June 6, 2003, at a meeting, co-worker looked at her and said,
�payback is a bitch;�
On June 20, 2003, another co-worker said �why in the hell would they
send someone who doesn't know her ass from a hole in the ground to
training;� and
On August 14, 2003, after misplacing a check at the copier, her manager
(Manager) came to her and asked if she lost a check.
Following the investigation, complainant requested a final agency
decision. In its final agency decision (FAD), the agency determined
complainant failed to show that she was subjected to a steady stream of
comments necessary to establish a hostile work environment. In addition,
the agency found that there was no evidence to show that the actions
were motivated by race or color.
This appeal followed. Complainant provided excerpts from the
investigative file which she believed supported her appeal. The agency
requests that the Commission affirm its FAD finding that complainant
failed to establish her claim of a hostile work environment.
ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's color
and race is actionable. In order to establish a claim of harassment
under those bases, the complainant must show that: (1) she belongs to
the statutorily protected classes; (2) she was subjected to unwelcome
conduct related to her membership in those classes; (3) the harassment
complained of was based on race and/or color; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance
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). 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).
Upon review, we find that complainant's work environment was less than
ideal, but did not rise to the level of discriminatory harassment.
Employees provided affidavits noting that personal and clique conflicts
were prevalent in the office. In addition, there was some resentment
in the office when complainant entered. She was a permanent GS-9 with
no bankruptcy knowledge while others within the office were temporary
9's for as much as 5 years before being granted the permanent 9.
In addition, several highlighted excerpts noted by complainant on appeal
point to a hostile environment due to personality conflicts rather than
a discriminatory motive.
In addition, we find that the incidents raised in support of her claim of
harassment primarily appeared to be isolated events between complainant
and her co-workers. Different co-workers were involved in each event.
The only event directly involving the Manager occurred in August 2003.
Complainant was making copies of check with payment vouchers to be sent
for processing. Complainant noticed that one of the checks was missing
and could not find it even when she checked the copier. The Manager came
to complainant and asked if she had lost a check. The Manager indicated
that she had found it on the copier. Complainant was upset that she had
wasted time looking for a check when it was in the Manager's possession.
Complainant does not explain how this incident is related in any way
to the other alleged incidents that comprised her claim of harassment.
As such, we conclude that complainant failed to show that the events
taken as a whole rose to the level of harassment or that the alleged
harassment was because of her race and/or color.<1>
CONCLUSION
Therefore, the Commission affirms the FAD finding that complainant failed
to establish her claim of a hostile work environment.
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
November 17, 2005
__________________
Date
1We remind the agency that, although there was no finding of unlawful
harassment, they have been put on notice of an unprofessional environment.
We recommend that the agency address the situation before it escalates
to the level of a hostile work environment.