01973565
06-29-1999
Martha B. Valdez, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Martha B. Valdez, )
Appellant, )
) Appeal No. 01973565
v. ) Agency No. 96-2034
) Hearing No. 330-96-8175X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of national origin (Hispanic),
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 harassed on an ongoing
basis when: (1) commencing on April 17, 1995, she received negative
job performance documentation; (2) her on-the-job-instructor (OTJI)
gave her conflicting instructions about the deadline for completing case
documentation which resulted in negative documentation; (3) appellant's
supervisor (AS) became upset with her during a closed door meeting held
to discuss cases; (4) the OTJI advised appellant that she could not
participate in outside activities while in training; and (5) appellant
received positive performance feedback on a �quick note� rather than on
an official memorandum. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED AS CLARIFIED.
The record reveals that on February 6, 1995, appellant was selected as
a GS-1169-7 Revenue Officer Trainee in the Collection Division of the
agency's Houston, Texas District Office. Several weeks after appellant's
selection, she received an inventory and schedule to begin field calls
with her OTJI. On April 12, 1995, appellant conducted her first field
call alone, and she subsequently attempted to complete the documentation
of the field call, as directed by her OTJI. Shortly thereafter, appellant
began experiencing the above alleged discriminatory harassment.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on October
24, 1995. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination.
The AJ noted the standard for harassment based on a hostile work
environment set forth in Harris v. Forklift Systems Inc., 510 U.S. 17
(1993), and Long v. Eastfield, 88 F.3d 300 (5th Cir. 1996), and initially
found that appellant established a prima facie case of harassment based
on national origin. The AJ then found that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
the negative documentation resulted from problems with appellant's
job performance, that trainees with performance problems are placed on
restrictions, and that AS discussed collateral duties but did not direct
appellant to stop her activities involving Hispanic agency employees.
As such, the AJ concluded that appellant failed to establish that the
alleged incidents of harassment were based on her national origin. The
agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
We find that while the AJ identified the proper framework for considering
allegations of harassment based on a hostile work environment, he
improperly made several conclusions of law under a disparate treatment
analysis. It is well-established that an employer who creates or
tolerates a work environment which is permeated with "discriminatory
intimidation, ridicule, and insult" that "is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create
an abusive working environment" is in violation of Title VII. Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993). Harassment of an employee
that would not occur but for the employee's race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently
patterned or pervasive. 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, supra; Rideout v. Department of the Army,
EEOC Appeal No. 01933866 (November 22, 1995).
The Commission finds that while the AJ failed to properly consider
appellant's allegations under the appropriate analysis for harassment
referenced above, the evidence of record is insufficient to support a
finding of hostile work environment harassment due to appellant's national
origin. After a careful review of the record, we find that appellant
failed to establish that the agency's actions constituted a pattern of
harassment, in that the evidence does not indicate that the conduct was
pervasive or more than a series of isolated incidents. In addition,
the Commission holds that the incidents alleged by appellant were not
sufficiently severe so as to amount to a hostile working environment
and thereby establish a Title VII violation. Harris, supra. Thus, we
find that appellant's work environment cannot reasonably be construed as
having been hostile or abusive based upon her national origin. We thus
discern no basis to disturb the AJ's findings of no discrimination which
were based on a detailed assessment of the record. Therefore, after a
careful review of the record and arguments and evidence not specifically
addressed in this decision, the FAD is AFFIRMED AS CLARIFIED.
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:
June 29, 1999
DATE Carlton M. Hadden, Acting Director,
Office of Federal Operations