0120083484
12-09-2008
Judy W. Arnold, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Judy W. Arnold,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083484
Agency No. ARS-1999-000661
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 20, 2008 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.
During the period at issue, complainant was employed as a Microbiologist,
GS-403-13, at the agency's Poultry Processing and Meat Quality Research
Unit, Richard Russell Agricultural Research Center, Agricultural Research
Service in Athens, Georgia.
On January 26, 1999, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to harassment and
a hostile work environment on the bases of sex (female) and in reprisal
for prior EEO activity when she was denied resources (funding and staff)
needed for her research projects in the Poultry Processing and Meat
Quality Research Unit since October 27, 1998.2
At the conclusion of the investigation, complainant was provided
with a copy of the investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
In its June 20, 2008 final decision, the agency concluded that complainant
failed to prove that she was subjected to discrimination as alleged.
The agency found that the evidence in the record did not establish that
complainant was subjected to harassment based on sex or prior protected
activity. Specifically, the agency found that the alleged harassment
was insufficiently severe or pervasive so as to create a hostile work
environment.
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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a 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; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
In the instant case, we note that by virtue of her sex and prior protected
activity, complainant satisfies the first element of the prima facie
case of harassment. We find, however, that complainant's claim of
harassment fails in that she has not shown that the incidents cited were
sufficiently severe or pervasive such that they unreasonably interfered
with her work environment. After a comprehensive review of the record,
we find that the agency's thorough discussion of the harassment claim
correctly analyzed the facts of the case, and in light of the standards
applied to a claim of harassment, correctly concluded that complainant
had not been subjected to unlawful harassment.3 Therefore, we AFFIRM
the agency's finding that complainant was not subjected to discrimination
as alleged.
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
December 9, 2008
Date
1 The record reflects that during the relevant time, the agency changed
its agency case number from 990319 to ARS-1999-00066.
2 The record reflects that in its final decision, the agency acknowledged
accepting complainant's other claim that she was subjected to harassment
and a hostile work environment when she was denied the opportunity
to compete for a GS-13 position. The agency stated, however, that
complainant had disavowed that claim. Therefore, the agency did not
address that claim in the instant final decision.
3 We note that complainant, on appeal, contends that the agency misframed
her claims by stating that she was also subjected to sexual harassment.
We find the agency's error harmless, as both the result and reasoning
were correct.
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0120083484
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083484