01a44546
10-29-2004
Regina Pangelinan, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Regina Pangelinan v. Department of Homeland Security
01A44546
October 29, 2004
.
Regina Pangelinan,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A44546
Agency No. I-03-W100
Hearing No. 370-04-00257X
DECISION
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.
The record reveals that during the relevant period, complainant was
employed as an Immigration Inspector, GS-1816-7, at the agency's Bureau of
Customs and Border Protection, San Francisco International Airport in San
Francisco, California. Complainant filed a formal EEO complaint on May
30, 2003, alleging that the agency had discriminated against her on the
basis of sex (female) when since December 2002, she has been subjected
to a continuous pattern of harassment and a hostile work environment
by a co-worker; and that upon being so informed, agency management did
not take appropriate action.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On March 18, 2004, the AJ issued a Notice of Intent to Issue
a Decision Without a Hearing, allowing the parties to file a written
response to the Notice. The record reveals that both parties responded.
In its Response, the agency argued that complainant failed to establish
a prima facie case of harassment based on her sex. The agency found
that complainant failed to establish that she had been subjected to a
hostile work environment, as the actions alleged fail to rise to the
level of actionable harassment under the regulations. The agency noted
that complainant outlined incidents of harassment that occurred between
August 2002 and April 2003, when the co-worker: (1) twice petitioned
to have her transferred; (2) once told her to clean the refrigerator
because it was a woman's job; (3) once asked her to cut bread because
�that's what wives are for;� (4) once told her she did not need to work
because she was rich; (5) once told co-workers she asked dumb questions;
and (6) once yelled at her, accusing her of talking about him. The agency
argued that the two alleged statements made by the co-worker (�a woman's
job� and �that's what wives are for�) were isolated comments and did
not amount to actionable hostile work environment based on her sex.
Furthermore, the agency argued that after complainant informed her
first level and second level supervisors that she determined that
a co-worker's behavior was unwelcome, management took immediate and
appropriate corrective action. The former Area Port Director stated that
in January 2003, she held a meeting with complainant and the co-worker
in an attempt to resolve complainant's issues. The former Area Port
Director stated that during the meeting, the co-worker apologized to
complainant for his actions; the parties concluded that complainant and
the co-worker should stay away from each other; complainant agreed to be
moved to the �G� side terminal away from the co-worker; and complainant
and the co-worker's shifts were �different, so they would not run into
each other.� Complainant's second-line supervisor (S2) stated that
management offered complainant the option to be temporarily transferred
to Terminal G �so she would not be working in what she perceived to be
a threatening work environment.�
With respect to complainant's claim that the co-worker harassed her again
after the January 2003 meeting, S2 stated that he offered complainant
�the option of going to mediation with [Agency Official] in the EEO
office, but she rejected that offer on May 5, 2003.� Furthermore, the
S2 stated that he felt that there was a �personality conflict� between
complainant and the co-worker.
On April 26, 2004, the AJ issued a decision without a hearing, finding
no discrimination. The AJ determined that the agency properly set forth
the undisputed facts and applicable law in its response to his Notice of
Intent to Issue a Decision Without a Hearing, incorporated the response in
his decision, and found no discrimination. The AJ found that complainant
had not established a claim of hostile work environment harassment.
The AJ also found that complainant had not established that she was
subjected to discriminatory conduct that was so severe or pervasive as
to alter the terms or conditions of her employment. Furthermore, the AJ
found that the agency took reasonable corrective action by separating
complainant and the co-worker's work assignments and assigning them to
different shift hours in order to minimize their interpersonal contact.
The agency implemented the AJ's decision in a final order dated May
21, 2004. It is this decision that is the subject of the instant appeal.
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. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. 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's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. 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. at 255. An issue of fact is "genuine" if the evidence is such
that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver
v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome
of a case. If a case can only be resolved by weighing conflicting
evidence, summary judgment is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider summary judgment
only upon a determination that the record has been adequately developed
for summary disposition.
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. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
It is also well-settled that harassment based on an individual's prior
EEO activity is actionable. Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000). 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 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, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The harassers' conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
It is well-settled that harassment based on an individual's sex
is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under this basis,
the complainant must show that: (a) she belongs to the statutorily
protected class; (b) she was subjected to unwelcome conduct related to
her membership in that class; (c) the harassment complained of was based
on sex; (d) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (e) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982).
The record supports a determination that complainant has not established
that the incidents identified were sufficiently severe or pervasive to
affect complainant's work environment. See Bloomer v. Department of
Transportation, EEOC Petition No. 03980137 (October 8, 1999). Moreover,
the record reflects that complainant informed her first level and second
level supervisors that she determined that a co-worker's behavior was
unwelcome, and that the agency took immediate action to end the alleged
harassment.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination is AFFIRMED.
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
October 29, 2004
__________________
Date