01972523
09-20-1999
Mary Ann Aanenson, Appellant, v. Lawrence Summers, Secretary Department of the Treasury Agency.
Mary Ann Aanenson, )
Appellant, )
) Appeal No. 01972523
v. ) Agency No. 95-4257
) Hearing No. 370-96-X2350
Lawrence Summers, Secretary )
Department of the Treasury )
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 race (white), 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 subjected to racial harassment by a co-worker and the agency
failed to take action to prevent further harassment and to ensure her
safety. 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 appellant, a Revenue Agent, GS-12, at the agency's
San Jose District Office, filed a formal EEO complaint with the agency on
September 5, 1995, alleging that the agency had discriminated against her
as referenced above. At the conclusion of the investigation, appellant
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 concluded that appellant failed to establish
a prima facie case of discrimination because she failed to show the
incident of harassment at issue was racial or motivated by racial animus.
The AJ found that although she believed appellant had been assaulted by
a co-worker, she did not show persuasively that the assault was based
on appellant's race.
Because of this finding, the AJ determined that she did not have to reach
the issue whether the agency's actions in response to the incident were
sufficient under Title VII.
The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ erred when she concluded that
the incident in question was not racially motivated. Appellant argued
that there was no question the incident in which the harasser (H)(Black)
grabbed appellant by the throat and stated in a loud, forceful voice,
"don't you ever speak to me that way again" must have been racially
motivated because H had repeatedly filed EEO complaints whenever they
came in contact with one another. The two prior incidents between them
occurred in 1991 and more recently, in June 1995 just less than two weeks
prior to the bathroom altercation. Appellant argued that the agency's
failure to terminate H from her employment caused her to harbor a great
deal of fear about returning to the workplace and that its placement of
H on administrative leave was not sufficient.
The agency contended that its actions were entirely reasonable considering
that its internal investigation of the alleged assault was inconclusive
and did not confirm that the assault took place. Since the agency's
investigation was inconclusive, it could not take disciplinary action
such as termination against H.
After a careful review of the record, and based on the reasoning of
Harris v. Forklift Systems Inc. 510 U.S. 17 1993 and Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986), the Commission finds that the
appellant failed to show that the agency did not act reasonably in
response to the incident in question. Although we disagree with
the AJ and find that the incident was racially motivated, and that
the incident, although singular in nature, was enough to constitute
harassment, we cannot agree with appellant that the agency's actions in
response were insufficient under the law. See, 29 C.F.R. �1604.11(a)
n.1; EEOC Policy Guidance on Current Issues of Sexual Harassment No.
137 March 19, 1990; see e.g., James v. Department of Health and Human
Services, EEOC Request No. 05940327 September 20, 1994; DeLange v.
Department of State, EEOC Request No. 05940405 (March 3, 1995).
More specifically, the agency upon learning of an altercation between
appellant and H, placed both employees on administrative leave until more
could be learned about the incident. The agency undertook an internal
investigation by the Office of Inspections which was an independent
office normally charged with more serious investigations instead of an
administrative investigation performed by management level employees
of the offices involved. The record reflects that the agency did this
to send a message that the agency would not tolerate violence in the
workplace. At the conclusion of the investigation 2 to 3 months after
the incident, the record reflects that both appellant and H were on
"flexi-place" allowing them both to work from home. There is also an
indication that H had made an application for retirement in September 1995
which was likely the basis for appellant's supervisor's representation to
her that H was not in work status and would not likely return to work.
There was no indication that H returned to the workplace at any time
before her disability retirement was approved in August 1996.
Although this circumstance was not based on an affirmative action by the
agency, it was a consideration of the agency when deciding what actions
to take.
Furthermore, the agency's reliance on the apparent absence of H from
the workplace was reasonable considering the surrounding facts of the
incident. Here, the AJ credited appellant's testimony that an assault
took place, but there was some doubt about the severity of the touching
that occurred because there was no physical evidence of an assault even
though H apparently had long nails and had allegedly grabbed appellant
by the throat. Moreover, appellant did not seek medical treatment
for any injuries and she continued with her work with a taxpayer after
the confrontation.
We cannot agree with appellant that the law required the agency to take
more aggressive steps to ensure her safety such as changing the locks
at the office, terminating H and providing appellant with an escort to
and from the parking lot. We think appellant was unreasonable in her
demands given the facts of this case which she stated would not have
been satisfied even by transferring H to another office within the San
Jose district.<1>
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 agency's
final decision as clarified herein.
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:
9/20/99
DATE Carlton A. Hadden, Acting Director
Office of Federal Operations1The agency determined
that an involuntary reassignment was not available
as a substitute for disciplinary action and
especially because no disciplinary action could
be taken without confirming an assault.