0120065137
05-29-2008
Eloria Howell, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Eloria Howell,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01200651371
Agency No. 0302106
Hearing No. 170-2005-00509X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 4, 2006 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. Complainant, a GS-12 Safety and Health Compliance Officer in
the Occupational Safety and Health Administration (OSHA) alleged that the
agency discriminated against her on the bases of race (African-American),
sex (female), and age (D.O.B. 11/11/58) when:
1. She was denied construction safety training, was excluded from
participation on office committees and in outreach duties, was accused
of having poor time management skills, and was assigned different work
than her coworkers. (race, age and sex)
2. An unidentified individual: (1) inserted "suspicious files" in the
Microsoft Word program on her computer during the month of June 2003; (2)
monitored all of her incoming and outgoing telephone calls; (3) scanned
her computer several times daily; (4) broke into her locked desk on the
weekend of May 30 - June 1, 2003; and (5) gave derogatory job references
to prospective employers. (reprisal and hostile work environment)
3. The agency failed to investigate her report that she was followed
by a black SUV after she left the Avenel Area Office to travel to her
jobsite in her personal vehicle, and someone placed "incriminating
e-mails" on her computer in an effort to have her terminated.
(reprisal)
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ) but withdrew that request after the AJ
warned complainant that she would be sanctioned if she did not adhere
to the AJ's orders. The AJ remanded the case back to the agency for a
final decision. The agency issued a final agency decision (FAD) finding
no discrimination. Specifically, the FAD indicated that in sum, the
record did not support an inference that the conduct alleged constituted
a hostile work environment motivated by a discriminatory animus directed
towards complainant. Moreover, the incidents alleged by complainant,
considered as a whole, did not rise to the level that would dissuade a
reasonable person from making or supporting a charge of discrimination.
Consequently, complainant failed to establish that she was subjected
to a hostile environment based on race, sex, age or in reprisal for her
prior protected activity.
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 EEOC Management
Directive 110, 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").
On appeal, complainant contends that she never requested a final agency
decision. She maintains that she withdrew her hearing request only after
the Administrative Judge warned her that he would take action against her
if she did not follow the orders she had issued. Complainant indicated
that she intended to file her case in District Court and therefore she
did not want the agency to issue a final agency decision.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
We agree that complainant has not shown that her race, sex, age or prior
protected EEO activity were considered with regard to her allegations.
We find the record shows that with respect to issue (1), the agency
gave legitimate nondiscriminatory reasons for its actions, namely, that
complainant was not immediately offered construction training because of
the priorities of the office, and once the office priorities changed she
was offered training, management was not aware of complainant's interest
or qualifications for office committees, it was not believed that she had
poor management skills and her work assignments were similar to others.
We find complainant failed to show that the reasons articulated were
pretext for discrimination. With respect to issues (2) and (3), we find
that the record demonstrates that the agency did in fact investigate
complainant's concerns regarding being followed and the use of her
telephone and computer. Further, we find that complainant has not
shown that the incidents complained of even considered as a group were
sufficiently severe or pervasive enough to constitute a hostile work
environment. With respect to complainant's contentions on appeal, we find
that pursuant to 29 C.F.R. Section 1614.110(b), once a hearing request
is withdrawn the case is sent back to the agency for final disposition.
We do not find that the agency or the AJ acted incorrectly regarding the
assignment of this matter. Accordingly, we find the preponderance of
the evidence of record does not establish that discrimination occurred.
The agency's order is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
____05-29-08______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120065137
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065137