0120063750
01-19-2007
Mildred J. Haskin, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Mildred J. Haskin,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01200637501
Agency No. IHS01206
DECISION
JURISDICTION
On June 6, 2006, complainant filed an appeal from the agency's May 9,
2006 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
On August 23, 2005, complainant contacted an EEO Counselor and
filed a formal EEO complaint on November 18, 2005, alleging that she
was discriminated against on the bases of race (Caucasian) and age
(54) when, on August 11, 2005, she was forced to resign from her
position as Community Health Nurse during her probationary period.
Complainant alleges that several incidents by her supervisor led to
her resignation. Complainant contends that on a daily basis, she was
belittled, harassed, insulted, ridiculed, intimidated and embarrassed.
Specifically, complainant asserts, inter alia that she failed to receive
proper training, was not given access to a government vehicle, told that
she had not performed her duties correctly, and set up to fail on her
second day of work. Complainant claims that the treatment of her by
her supervisor created an atmosphere in which she could no longer work.
She claims that she was ultimately forced to resign her position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
In its final decision, the agency concluded that complainant failed
to establish her claims. As to harassment, the agency determined that
complainant failed to show that the alleged incidents were severe and
pervasive or that they were related to complainant's race or age.
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
[and the Rehabilitation Act] 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, 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) s/he is a member of a
statutorily protected class; (2) s/he 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.
The central question in a constructive discharge case is whether
the agency, through its unlawful discriminatory behavior, made
complainant's working conditions so difficult that any reasonable
person in complainant's position would feel compelled to resign. Irving
v. Dubuque Packing, 689 F. 2d 170 (10th Cir. 1982). The Commission has
adopted a three-pronged test for establishing a constructive discharge.
Complainant must show that: (1) a reasonable person in complainant's
position would have found the working conditions intolerable; (2)
conduct which constituted prohibited discriminatory treatment created
the intolerable working conditions; and (3) complainant's involuntary
resignation resulted from the intolerable working conditions. See
Czarnecki v. Department of Defense, EEOC Appeal No. 01944348 (August
8, 1995). It is well settled that, in most instances, it takes more
than one or two incidents to create the intolerable working conditions
necessary to support a finding of constructive discharge. Nevertheless,
there have been exceptions to this principle, primarily in cases where
the conduct in question is particularly egregious. See Meyer v. Brown and
Root Construction Co., 661 F.2d 369 (5th Cir. 1981) (where the employer,
upon learning that complainant was pregnant, reassigned her from a desk
job to a warehouse job which involved heavy lifting).
The Commission has examined complainant's contentions, but finds no
persuasive evidence that complainant was discriminated against as alleged.
The Commission concurs with the agency's final decision that complainant
failed to establish a prima facie case of race or age discrimination.
We find that complainant has not established that the alleged harassment
was based upon complainant's protected classes. Even assuming that
the identified incidents occurred in the manner as described by the
complainant, the Commission finds that complainant's assertions of
discrimination are based solely on her own subjective conclusions.
In addition, the Commission is persuaded that complainant's supervisor
found her work to be inadequate in significant areas. In particular,
complainant's supervisor as well as complainant's co-workers, including
one named as a witness by the complainant herself, agreed that complainant
had difficulty taking blood pressure, drawing blood and documenting
height and weight. Complainant was often late for work as well.
Complainant's supervisor testified that she spent many hours training
complainant and because complainant had difficulty in performing certain
tasks, she monitored complainant closely. However, witnesses testified
that they never saw complainant's supervisor belittle, intimidate or
harass complainant. Complainant's co-workers testified that they believed
complainant had difficulty remembering what she was taught and would tend
to do only what she was told rather than learning on her own initiative.
For these reasons, the Commission finds that complainant was unable to
establish that the agency subjected her to discriminatory harassment.
Although complainant's claim of discrimination is based on harassment,
we note that the agency articulated legitimate, nondiscriminatory reasons
for its actions, and that complainant has not established pretext.
The Commission is also not persuaded that complainant was constructively
discharged. Specifically, evidence of record indicates that in
complainant's resignation letter, she states that her supervisor is "a
good nurse practitioner, but we are unable to get along." The record also
indicates that when complainant applied for another job she indicated
that the reason she left her former position was because she was too
far from her husband and family. Based on a review of the record and
the evidence presented, we are not persuaded that a reasonable person
in complainant's position would have found the agency's conduct so
intolerable that a resignation was warranted. See Harrell v. Department
of the Army, EEOC Request No. 05940652 (May 24, 1995).
CONCLUSION
Therefore, after careful review of the record including complainant's
contentions on appeal, the agency's response and arguments and evidence
not specifically addressed in this decision, we the Commission hereby
AFFIRMS the agency's final decision.
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.
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__1-19-07________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
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0120063750
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036