01A10620
08-27-2002
Margaret R. Finney, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Margaret R. Finney v. Department of the Treasury
01A10620
August 27, 2002
.
Margaret R. Finney,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A10620
Agency No. TD-98-9310
Hearing No. 340-99-3571X
DECISION
INTRODUCTION
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. For the following reasons,
the Commission affirms the agency's final order.
BACKGROUND
The record reveals that complainant, a Legal Technician/Tax Litigation
CATS Operator, GS-986-7, at the agency's Internal Revenue Service, Office
of Chief Counsel, Las Vegas, Nevada facility, filed a formal EEO complaint
on September 25, 1998, alleging that the agency had discriminated against
her on the bases of race (Asian) and national origin (Japanese-American)
when she was subjected to harassment creating a hostile work environment.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ found that the complainant had not provided evidence which
demonstrated a prima facie case of harassment based on her race or
national origin. The AJ found that, taking all of the incidents together,
they were insufficiently severe or pervasive to constitute a hostile
work environment. The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she has established a prima facie
case of prohibited harassment/hostile environment, or at least raised a
triable question of fact as to whether CW's behavior toward complainant
was motivated by complainant's national origin or race. The agency
requests that the AJ's decision granting summary judgement be affirmed.
ANALYSIS AND FINDINGS
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 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 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, 510 U.S. 17 (1993). To establish a prima
facie case of hostile environment harassment, complainant must show
the existence of four elements: (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 determining whether or not a hostile environment violates Title
VII, our regulations require that ". . . the challenged conduct must
not only be sufficiently severe or pervasive objectively to offend
a reasonable person, but also must be subjectively perceived as
abusive by the charging party." See Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 7 (March 8, 1994).
See also EEOC Compliance Manual, Section 2, Threshold Issues, at 2-18,
n.50 (citing Oncale v. Sundowner Offshore Servs., Inc., 423 U.S. 75,
80-81 (1998) that Title VII is �not a �general civility code,' and only
prohibits . . . harassment that is �so objectively offensive as to alter
the conditions of the victim's employment.'�) In Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998), the Supreme Court noted: "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment."
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id.
The AJ reviewed the Report of Investigation and the parties' submissions,
and found that the complainant had not provided sufficient evidence
which demonstrated a prima facie case of harassment based on her race or
national origin. The AJ found that of the eight incidents, which occurred
over a five year period, only two used racial or ethnic comments; that
the other six incidents did not represent the type of extremely serious
or egregious behavior that is prohibited by Title VII; that the six
incidents were neither severe nor pervasive enough to create a hostile
work environment; and that while five of the six statements reveal anger
by CW, they were insufficient to create a hostile work environment.
Concerning the racial or ethnic comments, the AJ found that both were
objectively offensive, but were not sufficiently egregious or offensive
to trigger a violation of Title VII. One statement was made off-site
and not in the presence of complainant and the other statement was an
isolated incident.
It would appear that the essential facts were not in dispute, that
credibility was not an issue, and it was appropriate for the AJ to rule as
a matter of law. The AJ found that, taking all of the incidents together,
they did not create a hostile work environment. In reviewing the matter,
the evidence of the complainant and all justifiable inferences, must be
drawn in the complainant's favor, e.g., that a racial animosity toward
complainant motivated CW's actions. Assuming that CW's actions were
caused by racial or an ethnic animosity, the evidence does not support
complainant's contention of a resultant hostile work environment.
The incidents were not severe or pervasive enough to establish a
hostile work environment. We concur with the AJ's conclusion that the
allegedly harassing incidents were not sufficient to create a hostile
work environment.
CONCLUSION
After a careful review of the record, the Commission finds find that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws, and that summary judgment
was appropriate.
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
August 27, 2002
Date