01975955
09-22-1999
Gladys Gerolamo, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Gladys Gerolamo, )
Appellant, )
) Appeal No. 01975955
v. ) Agency No. 97-3037
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury )
(Internal Revenue Service), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), and reprisal (opposition), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when she was terminated
from her position of Control Clerk, GS-303-03, effective October 12, 1996,
during her probationary period. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Control Clerk, at the agency's Service Center, Philadelphia,
Pennsylvania. According to the record, appellant worked for the
agency from March 4, 1996 until her termination on October 12, 1996.
Appellant alleged in her complaint that she was retaliated against
for writing letters to agency employees which contained allegations
that her husband was being sexually harassed by the Lead Tax Examiner
(female)(�Examiner�).<1> The record contains approximately twenty
letters which appellant sent to agency officials, the examiner, as well
as co-workers of the examiner between October 1995 and September 1996.
The bulk of the letters were sent on approximately the same day in May
1996, and are basically identical save the addressee. Therein, appellant
reports that the examiner sexually harassed appellant's husband and was
on a campaign to keep him out of work.<2> The letters each conclude
that it would be unfair if the examiner �got away with [the alleged acts]
without her fellow employees knowing what kind of a low life person she
really is.�
Also contained in the record is a letter dated July 2, 1996, from
the Director of the Philadelphia Service Center in response to one of
appellant's letters. Therein, the Director notified appellant that
her husband's sexual harassment complaint had been received and was
going forward. In addition, he noted that although he understood
appellant's need to provide information, none of the individuals to
whom appellant wrote could provide information while the complaint was
being investigated. Therefore, the Director advised:
I find it inappropriate for you to send this type of correspondence to
these employees. Please limit your contacts to the Complaint Center.
Also contained in the record is a letter received by the agency on or
about September 11, 1996. The letter, which is signed by both appellant
and her husband and is addressed to the examiner, contains graphic,
offensive language and threats directed to the examiner. Furthermore, the
letter alleges that the examiner sexually harassed appellant's husband,
and provides details in support of the allegations.
By letter dated September 26, 1996, appellant was terminated from the
agency's employ. In its notice of termination, the agency notified
appellant that she had displayed conduct unbecoming to an IRS employee
when she mailed pictures of herself and letters to agency employees which
reported that the examiner was a, �liar & conniver and in general a piece
of garbage.� Furthermore, the agency cited the September letter signed by
appellant and her husband, which contained repeated offensive graphic and
degrading comments about the supervisor, as reason for her termination.<3>
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on November 12, 1996.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision.
The FAD concluded that appellant failed to establish a prima facie case
of sex discrimination because she presented no evidence of a relationship
between her gender and her termination. However, the agency did find that
appellant had established a prima facie case of reprisal discrimination.
Furthermore, the agency found that it had articulated a legitimate,
nondiscriminatory reason for its action, namely, that appellant's
termination was based upon the abusive, threatening and harassing letters
which appellant mailed to the examiner, the Service Center's Director,
co-workers of appellant's spouse, and agency supervisors. Although
the agency found that appellant alleged she was merely protesting the
discriminatory actions of the supervisor, the agency found that appellant
had engaged in actions which, in any other context, would be found to
be �crude, harassing and totally disruptive to the workplace.�
On appeal, appellant contends that she did not write the letter which
caused her termination, she merely signed it. The agency requests that
we affirm its FAD.
The anti-reprisal section of Title VII protects employees, such
as appellant, who "oppose" practices alleged to be discriminatory,
as well as those who formally "participate" in the EEO process. 42
U.S.C. � 2000e-3(a). The effective enforcement of Title VII depends in
a very large part on the initiative of individuals who oppose employment
policies or practices which are reasonably believed to be unlawful.
Protesting or otherwise opposing suspected discrimination serves to
alert agencies to possible violations and allows them the opportunity
to examine the matter brought to their attention and take corrective
action when necessary. Section 704(a) of Title VII has therefore been
interpreted as intending to provide "exceptionally broad protection" for
protestors of discriminatory employment practices. Pettway v. American
Cast Iron Pipe Co., 411 F.2d 988, 1004-1005 (5th Cir. 1969).
However, the manner in which an individual protests perceived employment
discrimination must be reasonable in order for the anti-retaliation
provisions to apply. EEOC Guidance on Investigating, Analyzing
Retaliation Claims, EEOC Notice No. 915.002 (May 20, 1998). Threats of
violence to life or property, making an overwhelming number of complaints
based upon unsupported allegations, or bypassing the chain of command in
bringing the complaints, is the type of activity which is unreasonable
and therefore, not protected by Title VII. Id.
Therefore, after a careful review of the record, based on McDonnell
Douglas v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases), we agree with the agency that appellant has
failed to prove that her termination was based upon her sex or reprisal.
With respect to her claim of reprisal, we find that appellant's actions
on behalf of her husband were not protected activity. Specifically,
many of the letters appellant sent were directed towards individuals
the agency maintains were outside of her husband's chain of command,
and who were thus without authority to discipline the examiner for
her alleged behavior. Appellant has not provided any evidence to
the contrary. The bulk of the evidence reveals that appellant engaged
in this letter writing campaign not to oppose any unlawful practice,
but rather, was an attempt to discredit the examiner in the eyes of her
co-workers. Finally, we note that the September letter, which contains
the most egregious language and threats, was sent to the examiner after
appellant was directed to send all relevant information only to the
Complaint Center. Other than claiming she merely signed the September
1996 letter, appellant has failed to rebut the agency's contention that
she was terminated for her involvement in this letter.
The Commission finds that appellant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Therefore, after a careful review
of the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/22/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1In December 1995,
appellant's husband contacted an EEO Counselor
and filed a complaint against the agency alleging
that he was sexually harassed by the examiner.
The agency dismissed the complaint for failure to
make timely EEO contact. The Office of Federal
Operations affirmed the agency's decision.
See, Joseph H. Gerolamo v. Dept. of Treasury,
EEOC Appeal No. 01964383 (March 7, 1997),
recon. denied, Joseph H. Gerolamo v. Dept. of
Treasury, EEOC Request No. 05970634 (June 12,
1997).
2Appellant's husband had been furloughed due to lack of work at the time.
3The examiner also filed an EEO complaint against appellant and her
husband in response to this letter.